Before his recent appointment to the Fifth Court of Appeals in Dallas, Justice John Browning had a long career as an appellate practitioner and earned a reputation as a prolific author and speaker on topics relating to social media, technology, and Texas legal history. In this episode, Justice Browning joins Todd Smith and Jody Sanders to discuss his practice background, his transition from advocate to appellate justice, and his recent research and publications on African-American Texas legal history. Justice Browning also details recent efforts to obtain restorative justice through posthumous recognition and bar admittance of historically significant candidates who were denied legal practice privileges based on race.
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From Appellate Lawyer to Appellate Justice: The Road to the Fifth Court of Appeals| Justice John Browning
We have with us Justice John Browning from the Fifth Court of Appeals in Dallas. Welcome, Judge, to the show.
Thank you. It’s wonderful to be here.
We’re glad to have you on the show, Judge, and we’re looking forward to visiting with you. You have quite a background not only as a practicing lawyer, but as a legal historian. Do you want to tell the audience a little bit about your background and where you come from?
I graduated from UT Law in ‘89 and joined a mid-sized insurance defense firm. I made partner in five years. I got to have a tremendous amount of courtroom experience at a very early juncture, both trial and appellate experience. I got thrown into the trenches right away. I had a varied type of docket, as you can imagine, being in insurance defense. After I was a partner there for a few years, I started my own small law firm. I did that for about ten years and expanded the range of work that I did and, of course, tort reform. It had its effects on the Texas court system. I did a lot more in the way of commercial litigation, employment law, intellectual property.
Also, my law partner was an IP guy with a PhD in Physics from a little school named Princeton. We made a pretty good pair because I didn’t have the technical background that he had, but I had the courtroom background. We did a lot of IP defense, patent infringement, copyright infringement, trademark infringement, all over. After that, I became a partner with the first of several national law firms in their Dallas offices. I got tired of the national law firm scene for a little bit. Not everyone on either coast has the regard for Dallas that we would perhaps like them to have. They don’t always get the way we do things in Texas.
I was recruited by one of Dallas’ oldest law firms and was a partner there for about four years. I felt like Al Pacino in Godfather 3. When I think I’m out, they pull me back in. Another national firm came calling with a different approach and mindset. I joined Spencer Fane. They were a Midwestern-based firm in Kansas City. I enjoyed working there tremendously. I had a lot of friends who were there, including folks in the technology realm that I’d been working with for years. When they said, “Come on over to Spencer Fane,” it was a very nice invitation and I was happy there. Circumstances came about that led to the opportunity to serve on the court.
It sounds like you had a pretty broad litigation background, but you’ve been practicing as an appellate lawyer and have a good experience even before taking the bench and that’s in that area as well, right?
Yes. I tried my first case within a couple of months of being licensed, but I had my first report at the appellate decision in ‘90, within the first year that I was licensed. As with a lot of midsize and smaller firms, you don’t have the luxury of an appellate lawyer or appellate section to rely upon. A lot of times to defend my own wins, a summary judgment that might get appealed or a defensive verdict, or to correct the occasional mistake by the trial judge or the jury, I’d wind up handling the appeal myself. I didn’t view that as daunting a challenge as maybe some lawyers because I’ve always loved to write.
When you’re the lawyer who’s tried the case or argue the summary judgment, no one’s going to know the issues that are framed better than you will. That’s how I got a lot of my appellate experience early on was on my own cases. It evolved from there to where I was being brought in to assist with appeals from underlying cases that I hadn’t been involved with. I had a great and varied experience. I’ve argued before justices on 11 of the 14 intermediate appellate courts and have had cases go up to the Texas Supreme Court.
I always thought that even if you want to do appeals, having a litigation background is helpful. The same is true for litigation. If you have done some appeals, you understand how they blend together and the ways that it makes you better at both.
Some firms view having an appellate lawyer with the trial team at trial can be a luxury, but it’s more of a necessity. Obviously, if you can do that, if the case budget justifies that, that would be my preference all the time.
Todd and I are both big proponents of that, not for self-interested reasons, but we both agree with you.
I know you have a keen interest in legal writing and your experience on the appellate side of your practice, that certainly seems to fit. Was there something else that influenced you? You are a very widely published author. You’ve written a number of law review articles. What drives you to do that?
Two things, and I guess my wife jokes that I write for a couple of different audiences. One is the audience that remembers the day-to-day stuff, a humor column in the Bar Journal, or Texas Lawyer or something like that. There’s the maybe smaller crowd that gives out awards. I’ve been fortunate some of my writing has gotten awards. Half of the time, I hear myself referred to as very prolific. I’d rather they say a good writer, but prolific, I’ll take that. You know you’re writing too much when Stephen King sends you an email and says, “Slow down.” No, that didn’t happen. That’s my prolific joke.
I’ve had a lifelong love of writing and I was fortunate that a lot of people in law school have formative experiences. Maybe it was getting to work on the law review. I did not get on law review. I didn’t walk past the law review office on my way to the law library every day. I didn’t have that experience. My wife works at SMU Law School and her job is working with the law reviews. We find it funny that I’m married to someone who gets to experience that day-to-day that I never did. I’ve had my revenge by publishing in a lot of law reviews. But I had a different form of experience. I was the first research assistant hired by a then-young law professor with one book to his name named Bryan Garner.
Bryan has gone on to a multitude of bigger and better things. He’s the legal writing and legal usage icon. At the time that he was advertising for a research assistant, the first he’d ever hired, I was a 3L at UT. For some strange reason, he was impressed enough that he hired me. Maybe he felt sorry for me. The experience was wonderful. We’ve remained friends ever since. I count him as an incredible influence and mentor and blessing in my life. When people say, “What did you do? Did you help write this dictionary or that work?” Though I’m credited in a few things, more kindly than I deserve probably, I analogize it to even if you were cleaning the paintbrushes of Michelangelo, you’re still working with Michelangelo. My work for Bryan involved a lot of things that some people would find tedious or drudgery, pouring through Scottish law dictionary from the 1400s, but I enjoyed it immensely. That’s just something that Bryan and I have in common. It’s a love of the language.
What a great experience. No wonder you have become such a prolific legal writer with you getting your start there.
Prolific isn’t an accurate description. It seems like every time I opened the Bar Journal, there’s a picture of now-Justice John Browning and an article that was written about something of interest to me, usually technology-related or ethics-related or something that affects me in my practice. Although we’ve mentioned briefly, you’ve taken a little slant lately toward legal history.
I still have my fingers in a lot of pies. I still do a lot of technology writing. I approved my next technology piece for the Texas Bar Journal. We have special lawyers and cybersecurity issues coming out in December 2020 that I’ve organized and contributed to. I did an interview with a reporter for Reuters on the newly proposed federal court jury instructions on basically addressing and admonishing against juror online misconduct, researching the case on the internet, communicating on social media, that sort of thing. I still do a great deal of things on technology and the law, but I’m a historian by training. I’ve always loved history and have gotten to work on some pretty fascinating history-related projects.
I know that you have a technology and social media article that came out in The Appellate Advocate. If you’re reading, go look that up in social media.
Thank you. I appreciate the plug.
We’ll always plug The Appellate Advocate, which is what I always call the flagship publication of the state bar appellate section. The various esteemed list of former editors, I will say. I’ll pull you aside after the show, Jody, and ask how come it’s now taking four people to do the job of what used to be one.
It’s taken a while between issues. I say that maybe too harshly because, in addition to my work with The Bar Journal, being Editor-In-Chief for the Journal of the Supreme Court Historical Society I know all too well the challenges of getting a publication out, whether it’s quarterly or monthly.
You mentioned the Supreme Court Historical Society and I’ve noticed that the journal has been very well received and widely recognized of late.
I attribute that to the fantastic foundation that has had under David Furlow and Marilyn Duncan. They did yeoman labor on that and had some great input. I was privileged to have some of my work published in there. When they wanted to transition to someone new, I was incredibly honored that they would think of me stepping into what were very big shoes. I look upon myself as trying to be a good steward of what they had built.
Your interest in technology topics, did that develop during the time that you had your small firm and you were doing a lot of IP-related work? What led to that?
It’s unusual because I don’t come from a techie background. I was a Liberal Arts major in college. What happened was it grew out of my background in trying cases as an insurance defense litigator for a good chunk of my background. I was used to a company like a carrier saying, “We’re going to get surveillance on this claimant or plaintiff. We believe they may be exaggerating or lying about this or that.” I was used to trying to gather the information that I could use to attack my opponent. In 2004, with the advent of Facebook and then other social media platforms, I soon realized that people were sharing a lot of this information voluntarily. The things that I was used to having to hire a PI to go and get, people were posting out there for all the world to see. I thought, “This is great. I’ve got to use this.” I started using it to great advantage and getting some terrific results.
Lawyers took notice and asked me to speak on it at bar associations, write articles about it. After I’d done that for a while, West Publishing approached me and said, “We’ve been looking for someone to do a book,” on what they regarded as a phenomenon. Now we know it’s here to stay. I said, “I’d be happy to contribute to the book and write a chapter or two. I’d done that for other publications.” They said, “No, you’re the guy in this field. We want you to write the book.” I came out with what was the first and it’s used as a text in law schools around the country, The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on The Law in 2010.
That did very well. It resulted in a follow-up book, Social Media and Litigation Practice Guide, which came out in 2014. At that point, West wanted more of a nuts and bolts guide, a desk reference for lawyers to use. Although I’d had individual chapters in both of those books on legal ethics and the ethical consequences of social media use or misuse, I didn’t even think about the idea of doing an entire book on that subject. The ABA approached me and a good friend and colleague of mine, Professor Jan Jacobowitz at the University of Miami Law School and said, “We’d like an entire book on legal ethics and social media.” In 2017, we came out with our book from the ABA on legal ethics and social media. It mushroomed.
You’ve literally written the book on social media several times. Do you use social media much yourself?A Texas lawyer had a very real connection to probably the biggest civil rights milestone of our era. Click To Tweet
I do. I’ve been accused of not tweeting and posting as much as I should, as people expect me to, because of that background. I’m more an observer or lurker on those sorts of things. As someone who’s been a judicial candidate, I realize the importance of social media from an election standpoint. I’m pretty conscientious about that. In terms of tweeting and posting, I’ve always regarded my life as not very interesting and not all that worthy of tweets and Facebook posts or Instagram worthy or things like that. I don’t share as much. In fact, I’ve been critical of most of the rest of the world for oversharing. I tend to be limited on that. As I joke to people who are far more active on social media and approach Kardashians-like proportions, I tell them, “I don’t have time to post that much because I’m writing about people using social media.” There are only so many hours in the day.
You’re like the Safari leader observing the wildlife. You’re not getting in the middle of it as much, but you’re observing and taking notes.
I’m very much like Marlin Perkins from the Wild Kingdom. I’m probably dating myself. There’s always Marlin pointing out for the audience, “Now, Jim is going to pick up the 19-foot anaconda and demonstrate how strong it is.” As poor Jim is getting strangled to death by the anaconda, Marlin is giving us all the color commentary. I like that approach. I like writing about what other people are doing poorly or not intelligently on social media and their missteps and how to avoid those rather than doing them myself.
Another one of your interests that people may not know as much about is African-American legal history, particularly in Texas. How did you get into that area of interest?
It is odd. If you look at a picture of the Dallas chapter of the Society of African-American History and Culture, it’s an old organization we founded back around the turn of the century by Carter Woodson, a big historian. I’m pretty easy to pick out in the group picture as the white guy. It is a little unusual, but I was a history major at Rutgers. I studied, among other professors, under a very preeminent professor in African-American history. In fact, I won an award as an undergraduate for a paper on all-black units in the Revolutionary War. A lot of us are familiar with the movie Glory and the critical role that African American troops played in the Civil War.
A lot of us forget that throughout our history, African-Americans have served their country admirably, including from the very beginning. I’ve always been interested in the history of overlooked or underrepresented groups. That was the genesis for that. When I was chair of the Texas Bar Journal board, we came out with an issue that was themed under the We Were First banner, talking about trailblazers in different areas. The first Asian-American judge, the first Latina female attorney admitted to practice, different milestone achievements. In looking at that, I realized we hadn’t answered the question of who was the first African-American lawyer in Texas. As I dug deeper into it, I found out it was a mystery that historians either got wrong or didn’t know or gave up on.
I decided, because I like a challenge and because I’m a glutton for punishment and lack of sleep, I decided to research that. Along with our former chief justice at the Fifth Court of Appeals, Carolyn Wright, we uncovered the answer but also uncovered a lot of things that weren’t already known and published the first of several articles and the Bar Journal. We did an article in the Howard University Law Review. Through research, we found some amazing connections. For example, the first African-American County or district attorney in Texas was not, as Dallas Morning News likes to say, Craig Watkins of Dallas County. It was a lawyer from Fort Bend County back in the 1870s.
Even Fort Bend County’s historical commission and their official records of elected officials had omitted this guy. I found his oath of office in the election records. I found his letter of resignation which came during reconstruction. All these things, all these stories that had been ignored or gotten wrong by history, it was a wonderful experience to be able to correct the record and to do that. In fact, that first African-American lawyer, who also was our first African-American County or district attorney and our first African American judge in Texas, wound up moving to Kansas and arguing and winning a case before the Kansas Supreme Court that essentially laid the foundation for Brown v. Board. A Texas lawyer had a very real connection to probably the biggest civil rights milestone of our era.
Who was the first African-American lawyer in Texas and when were they admitted?
William Abraham Price and he was admitted approximately 1873 and was elected a county attorney. He had served as a JP before that. He was elected as Fort Bend County attorney in 1876.
You shared with us in advance some of your articles, including the one with Chief Justice Wright in Howard. That’s all very interesting. I saw the one that you had sent about Austin’s first African-American lawyer, and the folks here are very familiar with the name Heman Marion Sweatt. Our local courthouse is named after him. I venture to say that not nearly as many are familiar with the name John N. Johnson, who you describe as the first African-American lawyer in Austin.
In fact, he was the first African-American admitted to practice before the Supreme Court of Texas, which back in 1883 was not a common thing for lawyers to do. You usually have to have a case pending in front of the Supreme Court to seek admission, but we found his signature right there on the official roles in the Supreme Court archives. He was a fascinating guy because he was like Black Lives Matter before there was Black Lives Matter. He filed the first civil rights suits in Texas suing railroads for their separate and unequal accommodations for African-American passengers. He spoke out against the exclusion of African-Americans on juries over 100 years before Bateson. He spoke out against the deaths of African-Americans in police custody long before George Floyd or Breonna Taylor. He was advocating and writing about these things. He was a fascinating individual. I have an article coming out that’s probably my most in-depth look. My previous articles have been shorter. This one is like a law review length that relies on a lot of primary source materials that I uncovered.
I wanted to talk about that a little bit. You advocate for some restorative justice and some posthumous bar admissions. Do you want to talk a little bit about that? It’s interesting.
With regards to John N. Johnson, he was denied admission the first two times he applied, I believe on probably racial grounds, though he was eventually admitted to practice and then admitted to practice before the Supreme Court. There’s a movement to boot at the City of Bryan where he was originally an attorney before moving to Austin. They’re seeking a historic marker. When I asked them where they intend to place it, they talked about the Brazos County Courthouse. I said, “That’s a good bit of karma,” because that’s the courthouse where he was rejected twice and also was on the receiving end of some discriminatory rulings in representing clients.
In terms of lawyers of color or aspiring lawyers of color, I started researching that area which has been a fascinating subject around the country. About half a dozen times, we’ve seen state Supreme Courts around the country decide to right a wrong from the nineteenth century and grant posthumous bar admission to a minority lawyer. We found examples of African-Americans, Asian-Americans, and so forth who were wrongfully denied admission simply on the basis of race. Sometimes it’s at the instigation of local bar associations or descendants of theirs. I’m involved in a couple of efforts like that in addition to being a scholar who writes about it.
I got interested in trying to help seek justice. We’ve got a petition before the Texas Supreme Court right now. The Dallas Bar Association’s past and current presidents and a local judge essentially joined chief justice and myself in asking the court to posthumously admit an African-American man who was denied admission on racial grounds back in 1882. We’re looking into that. I’m helping the Seneca nation with a Native American from the 1840s who was denied admission to the New York Bar because he was a Native American and therefore, they didn’t consider him a citizen.
That’s interesting and important to remember the context that that happened in and push to right those wrongs. Thank you for all your work, bringing that to people’s attention and moving to fix those things.
It’s coincidental that it comes at a time when the national dialogue about systemic racism and past injustices is ongoing. I’ve always been, as a historian, someone who believes that you can’t move forward and you can’t avoid the mistakes of the past unless you learn about them.
Let’s talk about your pathway to the Fifth Court of appeals. If I recall correctly—you mentioned having been a political candidate before—the Republican primary from a while back, was that one of the ones that was stacked lots of candidates?
I won the Republican primary. I won a contested three-way primary in 2018. That was my first foray. That was at a time when up until then, with an all-Republican court, everyone regarded the toughest thing as winning the Republican primary. After that, you were supposedly a shoo-in. Apparently, it was not my year because 2018 was a rough year if you had an R behind your name and were a judicial candidate or judge in Texas. I don’t have to tell you the effect with statewide on the appellate courts and in Dallas where there hadn’t been a Democrat on the court since the early ‘90s. We had, 8 out of the 13 seats were up. I was one of the eight Republican candidates and we all lost in the blue wave of Beto-mania and straight-ticket voting. That was it. I never left private practice, so I wasn’t missing anything. It was unfortunate for six outstanding incumbents that either retired or returned to private practice. I didn’t know that there would be another opportunity. It certainly wasn’t the circumstances that I ever would have wished for but another opportunity sadly came about.
Just so everyone is clear, you’re speaking about the very untimely death of Justice David Bridges in an automobile crash. That was awful to hear about. I couldn’t believe it because, as I was mentioning before, my first six years of practice were spent in Dallas and he was on several of my panels going back. This is back in the late ‘90s and I couldn’t have met a nicer man. I’m happy to be able to report to people, I had all good experiences as a young lawyer dealing with people who had been on the appellate courts for quite a while. Even at that time, they were kind and thoughtful and treated me well as a young lawyer, not like I didn’t know anything at all, or genuinely interested. That’s something that we don’t probably talk about enough on this show is the relationship between the appellate bar and the appellate judiciary.
We do talk all the time about how the bar itself is a very cordial group. That cordiality passes between members of the bar and the judiciary as well. As you see the same lawyers over and over again, as a judge, you see the same advocates over and over again and the advocates see the same judges. Justice Bridges was a class human being, in my opinion. I know a lot of other people share that opinion. It is tragic that that was the way that the pathway was open to you. There are some unique features, not only to the circumstance under which you got the opportunity to take the bench, but the method by which you’ve taken it. If I understand and remember correctly, not only did you obtain a gubernatorial appointment to fill out Justice Bridges’ unexpired term, but you had to go through some wrangling to be placed on the November ballot.
David was killed July 25th and I was still reeling from this mere days later when local Republican leaders, county chairs, and others were reaching out to me saying, “We’re going to have to replace Justice Bridges on the ballot. We’d like to put your name in consideration.” Frankly, I wasn’t all that ready. I had spoken to Justice Bridges a couple of days before his death. As always, he was very encouraging of things. He was one of the ones who encouraged me originally to run for the bench in 2018. It wasn’t until the night before David’s funeral and I saw his wife, Sandy, at the visitation and she took me aside and said, “David would want you to replace him on the court.” That meant a great deal. I took that very seriously. I did agree to have my name put into consideration.
There were a number of other folks. There were two sitting judges who initially got into it. One later withdrew. One young lawyer was on the verge of sending out a press release announcing when someone reminded him that you have to be practicing a minimum of ten years to be an appellate justice. His ambition maybe overreached his grasp. In the end, the precinct chairs and county chairs from all six counties in the fifth district had to choose between a judge from Dallas and myself. Fortunately, during my campaign, when I had spent a lot of time, throughout the district of course, as a lawyer. I had handled cases in all six counties, I knew the judges. I had a very active campaign during the primary, getting the nomination, and then leading up to the general election.
I’d made a lot of good friends and folks saw me as someone with that name recognition and with the qualifications, 31 years of trial and appellate experience. I guess they knew I could write too. They placed their trust in me and I won that special election on August 15th overwhelmingly. That got me on the ballot. Shortly after, I heard from Governor Abbott’s office and they said, “We’d like you to get your paperwork together because we’d like to consider appointing you.” I was very humbled and grateful that Governor Abbott appointed me on August 24th.
You’ve been there a while and it was under frayed circumstances. How has the transition from being a practicing lawyer to an appellate justice been?
As you said, it’s been frantic. I had to wind up my private practice and transition out of that. As a partner, with generating work for multiple lawyers throughout my firm with clients all over the country, that was a bit of a challenge. Fortunately, I had a lawyer who had worked with me on behalf of those clients. We’ve got him in front of those clients. The transition was a pretty smooth one. Once I got on the court, that was like drinking from the fire hose, because in addition to getting on the court and having that tremendous transition, apparently, and this was timing, it’s not a rookie thing or anything like that, I also had rep duty for my entire first month.
In addition to the regular docket, I was responsible, on a panel, three justices responsible for the emergency writs and mandamus filings and so forth that needed to be addressed. If you had a trial setting on a Monday and you were seeking an emergency stay and sent something on a Friday night, you wrecked my Saturday. That comes with the territory. We have outstanding lawyers and staff at the Fifth Court of Appeals who were tremendous in helping me make that transition. They’re wonderful colleagues to work with. Everyone’s been great. Everyone’s been also very understanding of helping the new guy. With the appellate background that I had, it’s been a pretty good transition and I was issuing my first opinion inside of a week.
You were well prepared to do that. You knew what an appellate opinion should look like. That’s fantastic.
There have been challenges though because, as an advocate, I was used to preparing one side. As a justice, you’re investing a lot of time if you’re doing it right. I tried to do it right in fully appreciating where both sides are coming from and appreciating their arguments. I thought I prepared pretty hard as an appellate advocate. That’s nothing compared to the preparation I was putting in as a justice, getting ready for oral arguments and getting ready to issue an opinion.We always expect but are particularly impressed when attorneys go above and beyond with respect to adhering to the duty of candor. Click To Tweet
You had oral arguments since you’ve been there.
Yes. It was my second week. It was the first week of Zoom oral arguments. In fact, we even had our first Zoom en banc hearing, which, getting fourteen justices on Zoom along with the advocates for both sides was pretty challenging. The reason there were fourteen, we had a visiting justice who had sat on the original panel. In addition to all thirteen of us current sitting justices on the Fifth Court, we had that visiting justice participate in the en banc as well.
How do you manage an en banc hearing for fourteen judges on Zoom? Do you have an order that you go by?
Our chief justice made the very wise decision to make it clear to all of us as justices that for the first however many minutes for each side, there were to be no questions. Imagine being an appellate advocate, as you both are very well aware of that role and having to respond right off the bat to questions from not three, but potentially fourteen justices. It’s like being in a shooting gallery. It was good that there were certain accommodations made in terms of letting both sides get started on their central points before there’d be any questioning.
I’m picturing the en banc courtroom in the fifth circuit with all 16 or 17 chairs lined up in a U shape right around the podium.
To that point, I don’t know off the top of my head, what the limit is on the Brady Bunch of squares on a Zoom screen. When you get to fourteen, are you looking at having to scroll over to another screen on who’s asking you the question?
The Brady Bunch analogy was made by more than one of us justices in seeing the screen before we started. It’s very apt.
The other thing about your recent experiences, most of the time when someone gets appointed to the appellate bench, they’re having to fill out the unexpired term, which is technically what you’re doing, but they usually have a little bit of lead time to build up to a campaign. Your situation is ten times harder than almost anybody else, even any other appointee. You not only had to come in and try to learn the job, but you had to immediately, no delay, start. You already had been through an election process. You had a lot of the machinery there that you could tap into and restart, but that had to be incredibly difficult. Here we are and you’ve been on the bench for a while. Your cycle was two months. That’s incredible.
If you look at the level of campaigning, I’ve been to events and gatherings and meetings both in-person and virtual throughout the six counties, literally from the day after I was appointed. I’ve got hundreds of signs all up over the six counties and am posting regularly on social media. Essentially, it’s work all day and frequently into the evening as the schedule demands. Campaign nights and weekends. In the meantime, I had earlier made all these different writing obligations that had to be adhered to with different deadlines. I was up until about 2:00 or 2:30 in the morning putting the finishing touches on a law review article that I owed by October 1st. Technically it came in at 2:00 in the morning, October 2nd, but I was pretty close.
The new O’Connor’s Business and Commerce Code Plus or, what some folks would say, “What did you do on your summer vacation?” I had taken on a side gig as becoming an editor along with two law professors from Houston. If you get your new O’Connor’s Business and Commerce Code Plus, you’ll see John Browning on that as well. That was a fun 1,300 pages or so to work on. It’s been pretty busy, but if you can do without those little things like sleeping, it’s not a problem.
It’s like studying for the bar exam, I suppose. You just got to make it for another 30 days or so. The result will be good, and I’m sure you will feel good about having done your best under the circumstances. I certainly don’t envy that. That seems like an incredible schedule to try and keep, and probably no days off at all.
There are no days off or, as my wife likes to say, “Which county are we headed to today?” If this is Tuesday, it must be Collin County. Some days there are multiple events in a single day and you do your best. One reason people gave me the shot was seeing what I was capable of in 2018 and the level of the drive that is brought to it. Nobody worked harder. I said I may be out-fundraised, I may be outspent, but I’m not going to be outworked.
Now that you’ve been on the bench for a while, you’ve had the experience of oral argument and writing opinions on behalf of the court. Is there anything that surprises you about the way things look from that side of the bench?
I’ve gained whole new respect for the work that our staff attorneys do in a variety of different areas, and our staff. When appellate courts at Texas had the big ransomware attack, the Fifth Court was relatively unscathed because of some of their cybersecurity measures. I was very happy with the commitment to technology that the Fifth Court has had. They’ve always been a leader among the courts in terms of technology. The level of preparation, as advocates, I’d always been used to the prepping of one side. You obviously will prepare and know the record inside and out to anticipate what the other side is arguing or emphasizing. As a judge, if you’re doing it the right way, you are seeing everything from both sides. That takes a lot. That was eye-opening for me.
We’ve reached the time that we told you we would take, but we always like to ask our guests at the end if they’ve got a tip or a war story that they’d like to share.
I’ve got an article coming out in the Scribes Journal which covers legal writing and the article of mine is entitled How Not to Impress a Judge with Your Writing. It’s a little bit more lighthearted, although it’s got some serious things. Some of the observations that I’ve made that I would pass on as tips, the quarantine, the pandemic mentality has affected a lot of folks in the legal profession. What I’m seeing in some of the briefs, there’s a little bit more snarkiness or a little bit more prone to personal attacks and criticisms. I don’t think that gets you far. I can tell you it doesn’t impress us as justices. One tip is certainly to refrain from that thing.
The other is don’t misrepresent either the record or the authority because we do read those things. Of course, we always expect but are particularly impressed when attorneys go above and beyond with respect to adhering to the duty of candor. We had an attorney who alerted us in a letter brief that since he had filed his brief, and this was prior to oral argument, he wanted to be upfront and say, “A case has come down that guts my central argument.” Of course, he’s going to do his best as an advocate to distinguish that case from his, but the important thing is that he brought this to the court’s attention. It wasn’t something that he tried to hide or hope we wouldn’t say or something like that. I can tell you the reaction by me and my fellow justices, that enhances the credibility of someone like that. That’s very important, not misrepresenting something but living up to that duty of candor.
That’s a great reminder for all of us to, number one, keep checking the law before your oral argument to make sure nothing new is coming out. Be upfront and deal with it because the court’s going to find it if you don’t, which is even worse.
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About Justice John Browning
Over the course of over 31 years of practicing law, I have earned a reputation as a “go to” civil litigator with considerable trial, appellate, arbitration, and summary judgment experience in state and federal courts throughout Texas. This vast experience covers a broad range of areas, encompassing wrongful death; product liability; commercial litigation; all types of intellectual property disputes; employment matters; defamation; consumer protection/DTPA cases; professional liability; health care; class action litigation; and cyberliability.
Prior to being appointed to the Fifth Court of Appeals by Gov. Abbott, I was a partner at Spencer Fane LLP, a national law firm with offices in Dallas and Plano. Prior to that, I was a partner in the Dallas offices of two large national firms, a partner at a large Texas-based firm, and a partner at a mid-sized Dallas firm. I began my career at a mid-sized Dallas firm and after making partner at my next firm, I started and operated my own small firm for nearly 10 years before moving my practice to a large national law firm.
I have been licensed to practice in Texas since 1989, and I am also admitted to practice in Oklahoma. I am admitted to all federal courts in Texas, as well as multiple other federal courts, including the U.S. Court of Appeals for the 5th Circuit and the U.S. Supreme Court.
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