TALP 29 | Texas Constitution

 

Bill Chriss is truly a Renaissance man. A lifelong learner with degrees that include a Ph.D, Bill’s interests range across history, politics, law, and ethics. Bill’s recent research interest focuses on the Texas Constitution, both its origin and evolution. Bill sits down with Todd Smith and Jody Sanders and traces his career journey—from working as a trial lawyer handling his own appeals to becoming an appellate lawyer, with a stop along the way at the Texas Center for Legal Ethics. The conversation covers things attorneys should know about the Texas Constitution, its political history, ways attorneys can raise constitutional issues, changes Bill foresees in the near future, and shifting political winds in our great state.

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Appeals, Jury Trials, and the Texas Constitution | Bill Chriss

We have as our guest, Bill Chriss, from Corpus Christi. Bill, welcome to the show.

Thanks very much, guys.

Bill, I’ve known you for years. The funny thing is it hasn’t been specifically in the context of appellate law. It’s been largely having observed you in your previous capacity with the Center for Legal Ethics and in your role as chair of the Pattern Jury Charge Committee for the Blue Volume. Tell us a little about your background and what got you where you are now?

What got me where I am now is a lot of undeserved blessings from God. I am a third generation Corpus Christi. My grandparents came to Corpus Christi in the 1920s after being run out of East Texas by the Ku Klux Klan because they were Greek immigrants. I went to Corpus Christi public schools, University of Texas and Harvard Law School, which was a formative experience for me. I came back to Corpus Christi to practice law. Unlike 95% of my classmates, I never had an interview through the placement office. I always wanted to come back to Corpus because, I don’t know, I’m funny that way.

I started practicing law and very quickly became partners with a guy who is the poster child for getting nominated by the president for a federal judgeship and not getting a hearing. He’s got a Wikipedia page because of that. He’s a very fine lawyer here in Corpus. We’re still very close friends. I learned a lot from a number of great appellate lawyers who have mentored me over the years, Mike Hatchell, Rusty McMains and then, later on, Doug Alexander and Harriet O’Neill. I practice with my best friend, Kathy. I do all of her appellate work. I spent most of my career as a trial lawyer handling my appeals and finally graduated to the upper levels of the litigation practice as an appellate lawyer.

You’re joining with Kathy is pretty new, is it not?

We’ve been working together on cases for many years. As you mentioned, I took a hiatus from practicing law except for very part-time, in 2006, when I was offered a doctoral fellowship by H.W. Brands at the University of Texas to study history with him. As you said, I’m a big believer in lifelong learning. I’m working on my fifth graduate degree as we speak, in English literature. I couldn’t pass that up. I took about two semesters off. I did 24 hours’ worth of graduate work in those two semesters. Towards the end of that period of time, I was hired to be the executive director of the Texas Center for Legal Ethics which, at the time, no one told me their ox was in a ditch, but it was. They hired me to get it out.

I had heard a rumor about you, too, that you had an unscrupulous moot court partner in law school by the name of Steve Hayes?

I should have mentioned him because Steve Hayes has been very instrumental in my development. The other people that I should have mentioned that are very important to me, as appellate friends, colleagues, and mentors are Chief Justice Jack Pope, who became a friend of mine late in his life. He’s always been a very important influence on me. I know you clerked for Justice Gonzalez. He was from the Valley. Chief Justice Pope is the only member of the Supreme Court to ever hail from Corpus Christi, Texas. The other is Steve Hayes.

A little-known fact about me is that Steve Hayes was my moot court partner, which means that he did most of the work and I did a lot of the talking because Steve is smart. Our graduating class at Harvard included people that we graduated with and are friends with still, including Justice Scott Brister, Steve Hayes, who is my moot court partner, Mark Warner, who’s the senior United States senator from Virginia, and Sylvester Turner, who is the mayor of Houston. I like to say I am among the least accomplished members of my graduating class. I also like to say I knew Scott Brister when he was a Democrat. He’ll admit to it. Scott and I are very good friends. We disagree about some things, but we’re very good friends. Governor Perry was a Democrat. Lots of people switch parties these days.

It’s trending the other way these days.

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It’s very fluid. As I was telling you, I wear a lot of hats. One of them is as an amateur political commentator for the local TV stations. I have been a professor of political science among other things, a professor of history as well. I’m constantly amazed at how partisan our discourse has become. I used to have a radio show here in Corpus. My theme song was that Stealers Wheel song of, “Clowns to the left of me, jokers to the right. Here I am stuck in the middle with you.” I’ve always been an independent thinker, whose opinions defied categorization. Anybody intelligent has to be eclectic. It’s part of the classic liberal education, Western civilization. Our heritage from the ancient Greeks to say that all knowledge is provisional and that all opinions are provisional. If you’re not willing to say that new information will change your mind, you’re not much of a thinker.

You’re practicing more appellate law now than you have previously?

I’m almost exclusively appellate law. My practice now is I’m so old. For years, I was always the youngest person in the room. Now I’m almost always among the oldest. Once you get to this age, it becomes easier to decide that you’re only going to do the stuff you enjoy. For me, that’s appellate work and insurance coverage litigation, insurance coverage consulting.

That’s my first recollection of getting to know you is based on your experience and reputation as an insurance lawyer. In that area, quite often you see people move between that and appellate work generally because some of the skillsets are common to those two areas. I want to know more about your interest in history. It’s not every day that you talk to a lawyer who went back and has not only obtained one graduate degree, you got your PhD, too. You said you’re working on another one. What’s prompted your interest in history that’s continued to influence you to pursue further letters after your name, Bill?

There are a couple of things. First of all, all the other men in my family are doctors. My father was a physician. He was the first endocrinologist in South Texas. He was the first diabetes doctor in South Texas and the former president of the Texas Diabetes Association. He was educated at the Mayo Clinic. He was a hard act to follow. He set the bar pretty high. My brother is a full professor of Sociology at Cleveland State University in Ohio. His specialty is sociological theories. We talk about Emile Durkheim, Erving Goffman and Max Weber. I was the only one who wasn’t a doctor of something. I like to say that my midlife crisis was barely paying. I didn’t take the misprints.

I decided to go back and get a degree, Todd. My good friend and mentor, H.W. Brands of the University Texas, who’s been twice nominated for the Pulitzer Prize, has written like 35 books. He loves to sell books and among his biggest audience is lawyers. Lawyers love history. It’s part of our common law tradition. It’s what precedents are all about. It’s people like me who loved history and coming from the background that I do being Greek, and having been told by my mother when I was five years old, that I needed to eat my olives or I wouldn’t grow up to be like Hercules. It’s got to be in your DNA.

What was your focus in your course of study for your PhD?

In my formal course of study, I am a professional American historian. My dissertation was written about the Texas Constitution. It’s called Six Constitutions over Texas. It’s being peer-reviewed for publication. What happens, Jody, in graduate studies is it’s all about research. What you decide your interests are has a lot to do with what archives you have access to. In my case, since I was already leading the Ethics Center and had a job in Austin, I had to find something to write a dissertation about where I could do all the research in Austin and in Texas.

I ended up being a Texas historian. I’ve always been interested in Texas history, but if I’d had my choice, I would have written my dissertation about the Achaean League of the third century BC or Epaminondas’ liberation of Messenian helots as part of the Theban war in 367. I found out very quickly that things were siloed very severely in the academy. If you want to write about Greek history, you have to be a Classics major. In order to enroll as a doctoral student in the Classics Department, you have to have four years of Latin and four years of Greek. I could have tested out of the Greek because I read Greek and speak some Greek, enough to get into a fight, but not enough to get out of it.

Texas has, as you pointed out, interesting constitutional history and in particular, our Constitution is quite a document. It’s somewhere around 80,000 words. I looked it up because I was curious. It’s longer than the first two Harry Potter novels as it sits word-count wise. There’s a lot to it. It is interesting that it is what it is. Attempts to rewrite it have not gone particularly well. Can you give some background on where our Constitution came from?

My book, Six Constitutions over Texas, is a constitutional history of the 19th Century. The extremely brief version, and I talk about this in 2020’s iteration of the Advance Thoughts Seminar because I can’t resist the opportunity to talk about history. Societies write constitutions when they’re at pivotal moments in their history. The reason we haven’t redone the Constitution of Texas is that we haven’t had a severely pivotal moment in our political history since 1876. As a result of that, we go about revising the Constitution and adding stuff to it.

TALP 29 | Texas Constitution

Texas Constitution: We haven’t redone the Constitution of Texas because we haven’t had a severely pivotal moment in our political history since 1876.

 

If you look at the Six Constitutions over Texas, you got the 1836 Constitution of the Revolution, the 1845 Constitution of Annexation to the Union, the 1861 Constitution of Secession from the Union. To me, that’s a weird thing that, in 1845, Texans were clamoring by a margin of 95% to 5% for joining the union. Fifteen years later, we’re out with 75% vote for seceding from that very same union. That’s the first three. We’re not counting the 1827 Constitution of Coahuila and Texas, which is the first Texas State Constitution.

You have the two Reconstruction Constitutions of 1866 and 1869, presidential and congressional reconstruction respectively. A lot of people don’t realize the 1876 Constitution was a constitution of reaction against reconstruction. There’s been, among appellate courts, among the justices of the Supreme Court, a reappraisal. We were taught in law school back in the ‘70s and ‘80s that the Semicolon Court is of no presidential value. Maybe not so much anymore in these times, there’s a reappraisal of that.

The 1876 Constitution is the constitution of the redeemers, and what the redeemers were all about was redeeming Texas from reconstruction, which meant emasculating the powers of the governor and the state government in general, including the state police force, which had a number of African-American officers in it during reconstruction, and about restricting voting by minority groups. There were some compromises that hadn’t taken place with the growing populist faction or granger faction within the white Democratic Party.

The result, as we all know, was one-party rule in this state for over a century by the white Democratic Party until the 1970s. It was at the beginning of the end of that period of one-party rule that people began talking about a constitutional dimension in 1973 and ‘74, which was unable to come up with a new document. That was because the middle got whipsawed by the left and the right. The far left and the far right decided they didn’t like the document. The people in the middle who were trying to get it passed couldn’t get the votes to do so.

You mentioned the Semicolon Court and for our readers, I would send them back to our episode with Justice Ken Wise. He told the basic story behind it. We won’t dwell on it too long here. We’ve heard about the Semicolon Court on the show before when Justice Wise came on in one of our early episodes.

I’ve always thought of the Texas Constitution as a fairly weak constitution in the sense that it doesn’t provide for a particularly strong state government. As you pointed out, that was intentional. We have a legislature that only meets every other year. You have a governor with very limited powers. There’s not all that much that the state can do. It seems like in several years, the state has tried to bulk up its role a little bit in terms of state versus local control. That’s interesting with that constitutional history and background in place.

It’s clearly the case that the biennial legislature, our tradition of electing judges in partisan elections and depriving the governor or at least trying to deprive the governor of the right of appointment of those judges. These are all aspects of the constitutional system that are reactions to reconstruction, where Edmond J. Davis, who was the only Corpus Christi guy to ever be governor of Texas, who was a radical Republican, the governor who was ejected by the voters in the controversial Semicolon election of 1873. What I would argue about the Texas Constitution is that while it is structurally weak, in terms of the substantive rights that it grants our people, it’s quite strong.

If you look at the Texas Declaration of Rights, which is now Article 1 of the Constitution, as I’ve argued in other places, you’ll find that the Texas Constitution, or as one court said, the United States Constitution, provides the floor for individual rights in any state. State constitutions are free to add to those rights. In Texas, we have that. For example, in Texas, it’s quite clear and explicit that the right to bear arms is an individual right that includes the Right of Self-defense, which is a controversial topic among people who talk about the Second Amendment to the Federal Constitution, not controversy with respect to the Texas Constitution.

The Second Amendment, the language is specifically referring to a militia as I recall, is that right?

Yeah. It’s a well-regulated militia being necessary to the, I can’t remember what the rest of it is. The right to keep and bear arms shall not be infringed is essentially what the Second Amendment says. The argument in the United States Supreme Court and elsewhere has always centered over whether or not it’s a communal right that says water down the right to where it has to do with you have a right to be part of a government-run militia, or whether it provides an individual right to bear arms. Justice Rehnquist in the case that directly addressed that changed a lot of precedent for probably 100 years going back to the machine gun, after the civil war and then the machine gun cases of the 1920s. The Supreme Court’s most recent pronouncement is that there is some individual component to the right to bear arms under the Federal Constitution. There’s no debate about that under the Texas Constitution.

It goes so much further. I’d looked through it. It has essentially an equal rights amendment in it. It’s got protection for contracts and all that stuff in the Bill of Rights. Things that you wouldn’t even think about when you talk about the Bill of Rights in the federal context.

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It doesn’t say like the Seventh Amendment that says the right to jury trial shall not be infringed in cases and controversies in excess of $50 or whatever it is. The Texas Constitution says that the right to trial by jury shall remain in violet, which doesn’t mean that it would be purple. It should not ever be violated. We have two Due Course of Law Provisions. One that applies to criminal cases and the other that applies to civil cases and is part of the open courts provision. There’s a dearth of authority on this. The Court of Appeals’ opinions that have interpreted the Due Course of Law Provision have made it clear that due course of law is something more than federal due process under the Fifth and Fourteenth Amendments. There’s a substantive component to it, not a procedural component to it.

Those are the clauses that are cited often in Texas case law when people realize, “Supposedly we do have greater constitutional rights in Texas.” The appeal to due process and so forth under the Federal Constitution didn’t get the job done. Let’s go and litigate this under the state constitution and see if we can get a different result. Unfortunately or fortunately, depending on your perspective, there are limited numbers of subjects in which those arguments have been successful. Let’s take, for example, Tort Reform. Most famously, House Bill 4 back in 2003. There was a lot of uproar at the time about this has got to violate open courts, due course of law, but I’m not sure that’s ever gotten the traction that people thought it might be able to to raise a good substantive challenge.

The reason is because people have assumed that because the constitutional amendment passed, which added Section 66 to Article 1. Remember in the Logan Case, the Supreme Court determined that damaged gaps that were initially enacted under 4590i, the medical malpractice statute, did infringe on the open court’s provision. They weren’t related to any specific compelling governmental purpose. It’s an intermediate level of scrutiny. The response to that was for the legislature to work very hard over a course of years to amend the Constitution. The Constitution now says that the legislature has the right in medical malpractice cases to cap non-economic damages. After a date certain, it was 2005 or something, the legislature has the right to be the same in other, with respect to other claims. People assumed after that. I know I did.

That’s it. The camel’s nose is under the tent. There’s not a lot you can do about it. These arguments have been resurrected. There’s at least one Court of Appeals opinion I’m aware of that says, “Yeah, we amended the Constitution to the extent these caps interfere with people’s common-law rights to recover economic damages.” The legislature is still not authorized to do that under Section 66 of Article 1. The only damage caps you’re allowed in Texas, the legislatures allow in Texas, are as to intangible non-economic damages, pain and suffering, mental anguish and so on.

Another place I’ve seen the open court stuff come up is in the Texas Citizens Participation Act. When that first came out, I saw those arguments raised a lot. I don’t think they got a whole lot of traction, but it was interesting to see it brought back out there. I haven’t looked in Rule 91a, but I would think there’s probably some of those that have been made in that context as well.

Those are all very ripe areas for that argumentation. The truth is that courts change and you take over time. That’s what jurisprudence is all about. The argument that got no traction 20 years ago, 20 years from now might be the winning argument. How many times have you seen that over and over again? I suspect that this will continue. Chief Justice Pope said something that I’ve always remembered and that I’ve had to resist the temptation to use, in a number of briefs and appellate arguments. In his concurring and dissenting opinion in Duncan v. Cessna, he agreed with the jurisprudence, but he disagreed with the result because, in Sanchez v. Schindler, the rule was announced that we would no longer limit wrongful death claimants to pecuniary loss.

That was a rule that existed for over 100 years that finally got changed. It no longer corresponded with modern circumstances. Supreme Courts say, “Sanchez v. Schindler were going to allow the recovery of noneconomic damages in wrongful death cases.” We’re going to remand the case so that the trial court will have an opportunity to do that. It would be unfair for us to announce a new common-law rule and not give the litigants an opportunity to use it. In Duncan versus Cessna, another court comes up with a new common-law rule for cases not governed in those days by Article 2212a or 2212, which is now Chapter 33, announces a new rule in connection with the apportionment of liability and products liability cases and the way in which settlements should be credited.

The court doesn’t remand the case so that Cessna can retry the case using that new ruling. What Chief Justice Pope said and I’m quoting now Chief Justice Pope, I would imitate him, but it would probably be disrespectful. He had a very sharp way of speaking when he was upset. He says, “Under Sanchez, the plaintiff prevails if he wins. Under Duncan, the plaintiff prevails if he loses. The defendant loses both ways.” This is the part I love, “There is no greater inequality than the unequal treatment by the same court of things that are equal.”

How can you better describe the importance of stare decisis and what common law reasoning is all about? That’s when you think about it. Mike Hatchell and Rusty McMains taught me this early on. What we’re doing as appellate lawyers is, we’re trying to convince the court that if they decide the case in a way that we don’t like, they’re going to be violating some shibboleths, some principle that they do not want to violate because it can be used in other ways, in other cases. Please, your honors, you don’t want to touch this third way. You just don’t want to. If you do, this is what’s going to happen. The other best description I’ve ever heard of the appellate practice was from my friend, Reagan Simpson. I can’t remember we were at an ALI meeting or where we were. Reagan says, “We’re golf caddies, since we carry around the bag and the appellate courts decide what club they want to use.” That’s an apt description of what we do.

When you were talking about the due course of law and then that third rail, it made me think of the Patel case from the Supreme Court, the eyebrow-threading case a few years ago. It seemed like that case hit that third rail between the court because they fractured on it worrying about creating a substantive due process in Texas. This was a little bit undefined. It seems like someone very effectively convinced some members of the court that if we recognize the substantive due process in conjunction with the due course of law, where’s it going to go? How do we put a cap on that? A lot of members of the court seemed to struggle with that. Do you see that as a problem with some of these constitutional arguments, is that these courts are a little bit afraid to dig their teeth into them these days? I know that that may be something that changes, but just our courts in Texas.

Throughout the history of the United States and the United States Supreme Court and the judicial of the United States, there’s been an ongoing tension between two equally sacred responsibilities of the judiciary. One is deference to the more political branches of government, usually the legislature. The other is fidelity to the fundamental rights that are guaranteed in our foundational documents. You can add to that fidelity to the common law. Almost 1,000 years of tradition in connection with what people have a right to expect from their court system and from their government in general.

TALP 29 | Texas Constitution

Texas Constitution: The Texas constitution is a fairly weak constitution in the sense that it doesn’t provide for a particularly strong state government.

 

Those two paradigms always are intensive with one another. Courts, if you think about it from a theoretical perspective, almost every appellate case is a clash between those two paradigms. You’re either asking the court to be faithful to a tradition that is scholarly and Ivy-ed. That is a part of our common law heritage and our constitutional heritage, or you’re asking the court to, “Back off and let the legislature do this.” That case was a real battleground. I was not surprised to see a number of members of the court say, “Legislature can’t do this.” Other members of the court say, “Do we want to get into that because what’s next?” The answer is what’s next is osteopaths or licensed physical therapists or whatever. That tension has always been there. That tension is always there. We do our work as lawyers and advocates at the margins. That’s why it’s so important. I know you guys would agree with me on this.

It always upsets me when I feel that courts get away from this. Chief Justice Pope was such a student of the common law. He was like a judicial monk. He was like a priest of the law. He would’ve made a great Roman praetor or quaestor. He used to say this all the time, Steve McConnico, who was essentially his son in the law, his acolyte. He is a great lawyer in Austin. He will tell you this. Chief Justice Pope, most of his generation, they were fanatical about, you decide every case on the narrowest possible ground. There is no reason why the judiciary needs to pontificate. You don’t do it unless you have to. If you have to, you have to. There are so many times that you’ll be reading an opinion. You think you’ve gotten to the end and there are five more pages. You’re going, “Do you need to say that?”

They feel that way about our briefs too.

No question about it. How many times do you need to tell the same court over and over again? Um, what the standard is on summary judgment. They already know.

You’re referring to those opinions that move on and say, “We’ve decided the issue, but we’re going to provide this analysis for the benefit of the parties on remand.”

Here’s a bunch of big data for you and everyone else. What are you going to do?

Given that Texas’ Constitution, and I’d say this in the sense of versus the Federal Constitution, is something that is relatively easy to amend, do you foresee as political wins shift in the state perhaps that they’re going to use the Texas Constitution as a way to add some rights to the state level?

The answer is I don’t know because there are a lot of other mechanisms that exist for the state judiciary to, let’s say, amend the jurisprudence of the state. In the final analysis, judging is a political function. One of the things I have done over the years is teach. At the college level and graduate level, I’ve taught judicial politics, which you won’t even have a course called that if it wasn’t there, Constitutional Law and Political Philosophy. It is a political act. It doesn’t matter whether or not judges are elected. In Texas, we have a gubernatorial appointment system with retention elections. That’s been true since the 1950s.

There was an article written in the ‘60s that documented something like 88% of the judges in Texas at that time had been initially appointed by the governor. Whatever judicial selection system you have, and I’m certainly not against looking at changing that, but whatever judicial selection system you have, judges are political actors. The question is what is the best way to confine their political action within the realms of certainty, jurisprudence and stare decisis? Maybe the one thing I can tell you is inevitable is change. I don’t know what form that change is going to take, but I can tell you that.

Is it going to require a constitutional amendment for us to move from an elected judiciary to another model like some kind of appointment system?

It depends on what kind of system. I don’t think it would take a constitutional amendment to move to some more nonpartisan form of election. The notion of electing judges, particularly statewide, is embedded in the 1876 Constitution. If we were going to move back to the reconstruction system during reconstruction where the governor appointed judges and they had to be confirmed by the legislature that would require a constitutional amendment.

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We’d probably have to have a legislature that met more than every two years, too.

We had this brief period of divided government indexes in the late ‘80s and early ‘90s. We’re moving back into that period. In a lot of ways, that’s a good way for things to be. My friend, Dan Pozza, from San Antonio, who is another great appellate lawyer, wrote an article one time that he sent me that argued that the Sophists had gotten a bad rap because of the trial of Socrates. It was the Sophists who argued for the provisionality of knowledge and the importance of the adversary system in arriving at the truth. If you have an adversary system where the various participants in the debate are relatively equal in power or authority, you tend to get the best results. On the other hand, when you have that system, it becomes difficult to change your foundational documents. If we were going to amend the Constitution, it probably would have been easier to do it several years ago than it will be in several years.

One of your focuses given your historical background and expertise, especially in the Texas Constitution, is how do we go about litigating these issues? We’ve made reference to a few areas that have been litigated and the scope of statutory rights under, say, the TCPA. Are there any other areas that you think are ripe for constitutional arguments or what advice do you have to lawyers who may be facing these issues?

I do think that over time the right to a jury trial under the Texas Constitution may become a vehicle for restoring some sanity to things like the 91a dismissal practice, the Anti-SLAPP statute practice. I do think that those arguments will have some traction. There are all kinds of ways in which the legislature has been trying over the last couple of decades, and sometimes successfully. Even in our Rules of Civil Procedure, there have been ideas creeping in, largely from the federal side, that restrict people’s right to jury trial and increase the possibility of non-jury determination of contested issues of fact.

All I have to do is look at the statistics on the federal side where many years ago, 90% of all cases were settled and of the remaining 10%, 90% were tried to a jury and 10% were disposed of otherwise. Nowadays those numbers are the same with respect to 90% of all cases still settled, but of the 10% that don’t settle, a majority of them in federal court are resolved without a jury trial. I do think that at some point there will be a reckoning. I’m not sure how it’ll go. It may be that somebody will come up with an amendment to the constitution to limit people’s jury trial rights. It could go either way. There will be a debate in the next 20 or 30 years over what to do about a jury trial. Some of that has to do with technology and the diminishment of face-to-face interaction in society in general. How that debate will come out, I don’t know.

We’re living through a little bit of that right now. The tension between covert protection orders and the backlog and jury trial issues that courts are having.

That’s part of what I’m talking about. It’s all about conflict. I am a right branch of Hegelian. I’m a non-Marxist, non-socialist Hegelian. I believe that ideology is very important in history. History is a dialectic. It’s more of a helix than a dialectic. History is a competition between ideas. When ideas compete, the result is at some point you get a consensus that’s a synthesis of the competing ideas and that produces a new antithesis. The debate goes on. History continues to spiral in ways that can’t be foreseen. Will we find a way to have virtual jury trials? I don’t know what the technology will offer us in several years in that respect.

Is it a good idea to have those kinds of jury trials? I don’t know. What will the legislature do in order to either facilitate or limit the extent to which the jury trial system can be modified to suit new technology and biological realities? I don’t know. Will we reach a point in years when the ultimate neutral and artificial intelligence will be making decisions that we have made with humans? Will arbitration get to the point where your arbitrators are machines? These are not totally pie in the sky because we don’t know where all this is going. Fortunately, I’m old enough to where I don’t think I’ll have to worry about those things. Nobody foresaw that we would be living in a science fiction novel right now and yet we are.

Those are some scary thoughts and fascinating to think about. I was thinking that by the time any of that comes to pass, I won’t be practicing law anymore.

I probably will, so that worries me a little more.

The practice of law has already changed in ways that are uncomfortable for people my age. I tried my first million-dollar case when I was 25 years old and against Guy Allison. We used to go down to the courthouse and try million-dollar cases with files that were thick where you might take 1 or 2 depositions. I know people like Darryl Barger, that I practiced with in the old Claiborne firm in Corpus, would try 30, 40 cases a year. Imagine what kind of world that was. We didn’t even have fax machines. We had barely got moved into the Xerox era from mimeograph sheets and carbon paper. Yet we managed to do that. In many ways, it was a much happier profession and it was more fun than it is now.

TALP 29 | Texas Constitution

Texas Constitution: What we’re really doing as private lawyers is trying to convince the court that if they decide the case in a way that we don’t like, they’re going to be violating some principle that they do not want to violate.

 

If you’re still in the trial practice, you’re figuring out how to answer 429 requests for production. When you complained to the judge about it, what you’re going to be told is you need to go out in the hall and work it out. It’s not a criticism of the judiciary. They don’t have time. They’ve got their problems. I’ll tell you why I have these thoughts, why I think like this, is because I’m constantly exposed to young people in the classroom. My classes are all Socratic method, you get to talk. When you listen to the ideas that young people have, they’re paradigm busters when it comes to the way that we think about decision making. The notion of an AI decision-maker is not foreign to people who are in their twenties.

We may be coming on up to the precipice of dealing with some of those issues as we confront the situation that we’re in with COVID and the need to push the jury dockets. We’ve heard here on the show and I’ve heard outside the show, people will say, “If I’m forced to go to a jury trial virtually, I’m going to raise a constitutional challenge to that based on the Right of Confrontation.” Maybe you can answer this question. Is there any difference in the Right of Confrontation between the US and the state constitutions?

I haven’t looked at that. I’d have to look at the language. I would have to look at it.

I accomplished my purpose now. I stumped the expert.

I have never hesitated to say, I don’t know. Socrates said, “I’m the wisest man in Athens because I’m the one who knows he knows nothing.”

I suspect some law clerk somewhere is going to get a research project on that issue for too much longer. I know in Travis County they’ve announced that jury trials are going to resume virtually. Although I don’t believe it’s been confirmed that they’re going to be compelled. It’s still going to be voluntary. If things continue on the present course, we may be in a situation where the Supreme Court tells us all, “Live jury trials are still not permitted, but we’re going to maybe leave it up to the courts as to whether to order a virtual jury trial.” That’ll start a whole new wave of litigation that will benefit people like us.

It will benefit people like us, but I am with Chief Justice Hecht on this issue of collateral ancillary litigation. He said many times in and out of court opinions that a bane of our existence as lawyers and judges is this multiplication of ancillary litigation. It’s like the mythical Hydra, you chop off one head and two heads grow back. For example, in disqualification situations, you move to disqualify the opposing lawyer. The opposing lawyer was disqualified. He turns his file over to the new lawyer. You moved to disqualify that lawyer because they have his file. Where does it end? We didn’t use to do that stuff. I remember when I was a baby lawyer, I started out as a defense lawyer and later became a plaintiff’s lawyer.

I started out as a defense lawyer and I was in the library and the senior partner, Cecil Redford, who was a close friend of Chief Justice Pope, he used to stay at his house when he would come to Corpus. Cecil Redford came in and said, “What are you doing, Chriss?” I was proud of myself, Harvard law school. I know what I’m doing. “Mr. Redford, I’m in here. I’m researching these. I’m going to file some special exceptions on the plaintiff and make them be more precise in his pleadings. I’m using that as a prelude to filing a motion for partial summary judgment.” He said, “What are you doing that for?” I said, “Isn’t that what we do?” He said, “No. If you do that, you’re going to make the plaintiff’s lawyer go in the library and figure out what his case is about. Why do you want to do that? You’re wasting your client’s money.” I said, “I thought that’s what we did now.” I never forgot that lesson. That lesson has not been taught in a number of years, unfortunately.

Time will tell as far as the jury trial issue and how that’s going to turn out.

Our ox is in a ditch. There’s no question about it. Either the pandemic is going to subside or we’re going to move to some form of technologically assisted trial. What other alternative is there?

Before we go, we always like to ask our guests to close out with a tip or a war story. Is there anything you’d like to share?

History is a competition between ideas. Click To Tweet

Over the course of my appellate practice, and I had my first appeal in 1982 or something like that, in the course of my appellate practice, I’ve been the king of the per curiam opinion. I oftentimes don’t get a chance to say what I want to say. My practice tip would be don’t be too sure of yourself. I had a case which Scott Brister, when I mentioned the facts of the case, he was on the court at the time, immediately remembered it where it resulted in two per curiam opinions. We went up to the San Antonio Court of Appeals and the issue was once the court grants you a new trial, can the court ungrant that motion for a new trial within the period of its plenary authority? Chief Justice Blair Reeves and Justice Alma Lopez and, I forget who the other justice was, a three-judge panel at the San Antonio Court of Appeals, which back in those days was very mainstream, very moderate, very conservative, didn’t get to argue the case per curiam opinion.

The judge can’t do that. That’s like a summary judgment without even a motion. You’ve granted a new trial. The case goes back on the docket, end of the story. They took that up to the Supreme Court. The Supreme Court didn’t get a chance to argue it, barely got a chance to brief it. The Supreme Court comes down nine to nothing per curiam opinion. That’s baloney, of course not. The judge can do whatever he wants within that 105 days or 75 days. Never get too sure of the result that you got on appeal, especially at the intermediate level, because you got unanimous or even per curiam opinion in the court of appeals doesn’t mean you won’t get one the other way. I’ve lost a lot of cases, and anybody who tells you they haven’t lost a case isn’t much of a lawyer.

I’ve lost in more ways than Carter’s got bills. I’ll tell you another war story. This is one of my favorite war stories is always be careful what you agreed to with the other lawyer. I had a case one time that was an employer liability wrongful death case, where we had six heirs of the body who were suing for gross negligence and punitive damages, the employer of the decedent. You can only recover if you prove gross negligence and you can only recover punitive damages. I had two twins who were the illegitimate children of the decedent. They had only seen him one time. He had come to see them at Christmas time one time when they were like eight or something. He gave one of them a toy truck and the other one, a lollipop. I forget what the facts were, but he had a very tenuous relationship with these kids. The other plaintiffs were like his wife, his widow, his parents. There were six of us and three lawyers involved and one defense lawyer, who was defending the defendant.

I’m thinking, “I got to deal with this in board iron.” I get up and say, “Now ladies and gentlemen of the jury, let me tell you, I was an illegitimate child. I was born illegitimate and adopted by my parents. My clients, they’re illegitimate, but the law says that you can’t discriminate against people because they’re illegitimate. We’re going to be taking the position in this case that they’re as entitled as anyone else as the heirs of this man’s body to recover damages for his injury. They should not be discriminated against.” The defense lawyer jumps up and goes, “I object, Your Honor. Mr. Chriss is implying that we would somehow discriminate against this because they’ll be treated equally.”

The next thing you know after we tried the case, we get a $6 million verdict. The $2 million of it goes to my two twin kids who had only seen their father once. Be careful when you jump up and object that’s called influence blocking. I don’t know Todd if you ever played football, but in football, there’s this concept of influence blocking where if you want somebody to go left, you block them to the right so that they will fight you and fight you to try to get back to the left. That’s called influence blocking. Use influence blocking if it’s appropriate, be careful about being influenced blocked. Don’t necessarily jump up and object and say, “We would never do that. I totally agree. Everyone should be treated equally. Thank you very much. I’m done with board iron.”

Bill, we could have you provide more stories and tips all day long. Thanks so much for being with us. We enjoyed having you. It’s certainly been a history lesson. We’re talking about things that are way above my head as far as going back to Greeks and Romans and how they influence our society. These are things that I do not think about on a daily basis.

If you focus too much on the mundane, it’s no fun. This has been a lot of fun. Thank you for having me.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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About Bill Chriss

TALP 29 | Texas ConstitutionWilliam J. Chriss has more than 25 years of experience in state and federal courts. He has been board certified in civil trial law and personal injury trial for more than 20 years, having successfully handled a large number of complex lawsuits, arbitrations, mediations, and appeals. Mr. Chriss has extensive experience as lead counsel in cases involving insurance bad faith, construction defects, property damage, wrongful death, serious bodily injury, libel and slander, fraud, commercial litigation, employment disputes, breach of contract, and deceptive trade practices. He also has many years of experience in legal ethics and legal malpractice, having recently served two years as dean of the Texas Center for Legal Ethics and Professionalism, a non-profit foundation founded by three retired chief justices of the Supreme Court of Texas to promote the highest levels of integrity among lawyers.

Mr. Chriss’ insurance law practice has involved representing policyholders against insurance companies, agents, and brokers in cases involving property, health, disability, life, and auto insurance. He has represented businesses, government, and private individuals in a variety of matters including claims denial, claims underpayment, appraisal, arbitration, and insurance bad faith. He has handled hundreds of cases involving insurance coverage and benefits. He was one of the first Texas lawyers to try to verdict property damage claims involving plumbing leakage and slab foundation damage, and claims involving mold. He has written and lectured so extensively on property damage and insurance law that his work has been cited by lawyers and mentioned at seminars, in court opinions, and in scholarly articles for years.

His construction and property damage litigation experience includes representing owners against general contractors, subcontractors, product manufacturers, engineers, and real estate agents. He has represented both homeowners and commercial building owners in actions to recover damages due to defects in construction or modification/repair.

As lead counsel, he has handled cases involving product liability, construction site accidents, automobile and motorcycle accidents, tire blowouts, aviation, train crossings, falls, drowning, and serious burns. He was one of the first attorneys in the nation to try to a verdict a case involving a fatal accident allegedly caused by lack of vehicular conspicuity.

Mr. Chriss was lead counsel in one of the important cases interpreting the substantial truth doctrine as it relates to libel and slander, and for several years he acted as counsel to newspapers and to radio and television stations. He has also represented aggrieved individuals in claims of damage to their reputations, and he has substantial experience in Open Records Act and Open Meetings Act. Recently, he published the first major law review article in several years to comprehensively analyze the Texas law of privacy and personhood.

In employment law matters, Mr. Chriss represents employees in lawsuits and arbitration proceedings involving claims of wrongful termination, including claims of workers’ compensation retaliation. He has also represented workers or employers in claims of employment discrimination, slander, breach of contract, breach of fiduciary duty, covenants not to compete, and separation and severance agreements.

 

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