A legal career can span many decades and different types of practices. In this episode, a long-time appellate attorney, Kevin Dubose of Alexander Dubose & Jefferson, joins Todd Smith and Jody Sanders to discuss not only his experiences throughout his appellate law career, but also his life as a trial lawyer before switching to appellate practice. Kevin also shares the history of the formation and growth of the Appellate Section of the State Bar of Texas, including the watershed year that gave the section its start. Kevin also discusses lessons he learned both as a trial lawyer and an appellate lawyer, including some that apply to both practice areas.

Listen to the podcast here:

Setting the Appellate Bar in Texas | Kevin Dubose

We have with us a very well-known appellate lawyer and all-around good guy, Kevin Dubose from Houston. Kevin, welcome to the show.

Thanks, Todd and Jody. It is good to be here.

Everyone knows you today as an appellate lawyer, but you haven’t always been an appellate lawyer, have you?

That’s right. I always wanted to be a trial lawyer. It started when I was in middle school and joined the debate team and won my first tournament. I decided I should be a lawyer. I went through most of school thinking that and most of law school. I spent six years with a personal injury practice. It was a three-man, mostly insurance defense firm and tried 25 cases in my first six years of practice, which is hard to do these days. I loved and hated it. I loved getting up in front of juries and talking, but I hated the discovery. I hated fighting with other lawyers over document production and that sort of thing. What brought home to me was when I went through a period where I had bad stomach aches and problems.

I went to doctors and had a bunch of tests run. They came to me and said, “You’re healthy as a horse, the only problem with you is stress.” Later, I had chest pains and my father had just had a heart attack so I looked into that. I went to a cardiologist and had a bunch of tests run and the answer that came back was, “There’s nothing wrong with you but stress.” I thought, “Here I am, 30 years old, and my body’s already revolting against my career choice. What else can I do?” This was in 1985. There were a couple of appellate specialists around, Jim Kronzer has been around forever, Royal Brin in Dallas, but not many. It wasn’t a well-recognized specialty, but I’d always enjoyed appellate advocacy.

I was an English major in college. I liked to write. I was on a moot court team in law school, not mock trial. I sat around and thought, “A lot of trial lawyers don’t like appellate work. They don’t like research. They don’t enjoy writing. It’s hard to find a block of time with a deposition and trial schedule.” I decided to hang out a shingle. I had an extra room in my house with a separate entrance to the outside and started a solo practice. I wrote a letter to my trial lawyer friends that said, “I know you might not enjoy this kind of stuff. I’m kind of geeky and I do, so why don’t you let me take this off your hands. I’ll charge you less than you charge your clients. You can make money off of it and I’ll do your appellate work.” I sent that out and my test was, “If I saw this person at the courthouse, would I speak to them by name, and talk to them?” After six years of trial practice, I had 140 people on my list. I sent out the letter on a Monday and I got my first call on Friday of that week. That’s how I made the transition.

That’s a smart way to do it. We jumped right into your early career, but you practice with the largest appellate boutique firm in Texas with a whole slew of board-certified civil appellate lawyers and a couple of ex-chief justices. Where you are now, it seems to me, that’s the upper echelon of the appellate practice. To me, it’s interesting to hear how you go from a 30-year-old trial lawyer struggling to deal with the stress to where you are now. I wanted to get it out there that you’re here because not only of your experience, but you’re in the practice point where a lot of appellate lawyers aspire to be. You’re a great example of, “Your career is the long game.” It’s not what happens to you super early in your career.

I was fortunate to be at the right place at the right time on several occasions to get in on the ground floor when the specialty first started. In 1985, I started my solo practice and struggled. I am not a great business person. I’m not a good marketer. I was in practice for two years, and the second year, I hooked up with one trial lawyer and worked for him half time and did his appellate work so I’d have some regular income stream. But the real lucky break was in 1987.

I was an Adjunct Professor at the University of Houston Law Center in Legal Writing, which was a very part-time job. I was out there and ran into an old friend of mine on the parking lot. She said, “What are you doing out here?” I told her and she said, “Our Director of Legal Research and Writing is about to retire. We need somebody else. Would you be interested?” I said, “Sure.” I ended up interviewing for that job and getting hired. They were great because they told me this is a half-time position and we strongly encourage you to find something else with the other half-time. I approached a guy named Jim Perdue, a famous medical malpractice lawyer. Jim was a big alumnus of the University of Houston. He perceived what I was doing as being a public service for his law school. I’d tried a big case against Jim, and he got a million-dollar verdict. He liked the way that I handled it strategically on my end.

I went to him and talked to him and said, “What would you think about an appellate lawyer?” They had nine PI plaintiff trial lawyers, but no appellate lawyers. None of them like to do appellate work. So they let me become their appellate lawyer on a half-time basis. Every day I would go to work there in the morning and go to the law school in the afternoon. I started out as the Director of Legal Research and Writing then I became Director of Appellate Advocacy, which meant that I taught an Appellate Advocacy class and coached moot court teams. I enjoyed doing both. I always told people that I think teaching makes you a better practitioner and practicing makes you a better teacher. I did that for seven years but I finally got to a point where I felt like I’d got what I wanted out of teaching.

TALP 18 | Texas Appellate Bar

Texas Appellate Bar: Most appellant lawyers have good relationships with each other. They argue passionately in the courtroom and then go across the street and have a drink.

 

The firm was going fine, but I was reaching a point where most of my work was coming from outside of the firm rather than doing the firm’s appeals. They were so good and most of their cases settled because people were afraid to go to court against them. One day I was having lunch with some friends and one of them was Jennifer Hogan. Her husband, Richard, was practicing David Holman. She said, “You ought to talk to Richard and David.” I did and ended up going to work with them in an appellate boutique that started out with Richard, David, and me. A year later, we hired Roger Townsend and Jennifer Hogan when they left Fulbright. Later on, we hired David Gunn when Jim Kronzer retired. And we hired a couple of lawyers fresh out of clerkships named Russell Post and Brett Busby. It was an all-star team that grew organically. I felt fortunate to be at the right place at the right time for that.

It’s interesting to think about being the Director of Research and Writing in a law school and only a half-time basis. I feel like there’s such an emphasis on that. It’s funny that it was the case when you did that 30 years ago.

The legal research part of the course, I would lecture to the whole first-year class once a week and then they broke up into small groups taught by student TAs, and I supervised them. The legal writing part of the course, they broke up into small groups and were taught by lawyers as adjunct professors. I did get to teach in a huge auditorium once a week, but the actual hands-on teaching was done by other people. I helped design the curriculum and worked with and coached the teachers on both levels. I enjoyed it. It was a fun job.

I’m a UH Law Cougar so it’s near and dear to my heart.

When I was teaching, I had an argument on a big case for Jim Perdue in the First Court of Appeals. The other side had retained Dean Keeton from UT Law School. His name was on their brief. When I went to the oral argument, I told my students about the argument. I said, “Some of you may want to come to watch an oral argument.” Some of them came and they were going up on an elevator with about ten students and the two lawyers on the other side. They saw these law students and they said, “Did you come to see Dean Keeton?” It turned out he was sick and couldn’t come that day. The students said, “Who’s that? We came to see Kevin Dubose.” I couldn’t have scripted it better.

In some of our early communications about getting you on the show, you mentioned 1987 being a watershed year. What year was it, Kevin, that you went in with Richard?

That was in 1994. It was 1987 when I left my failed solo practice and the law school and Jim Purdue, but I mean 1987 was a watershed year for the practice and the appellate bar in Texas. Three significant things happened. That was the year they first offered board certification in civil appellate law. I took the test for the first year. I’ve always wondered who graded that test the first year when everybody seemed to be taking it. The Appellate Section of the State Bar started and Ralph Brock was our first chair. It was called the Appellate Practice and Advocacy Section. It’s been shortened to the Appellate Section. The first State Bar Advanced Appellate Law course was offered in 1987. That’s what makes our culture is the Section, the course, and the certification, and those all happened the same year.

I think of those things like they’ve always been there, but clearly they weren’t. Board certification had to start somewhere and the section too started that same year.

I don’t think we were aware of the significance of those things happening at the same time. It was just like, “Let’s do this,” and it happened.

That’s an incredible convergence of things that I think we take for granted.

Trial lawyers tend to be a little bit more aggressive, combative, passionate, and zealous. Click To Tweet

You were the chair of the Appellate Section at one point, correct?

I chaired the Section in 1995, 1996. The section started out with a bang, but it slowed down a little bit. The two years before me, we had a chair for one year whose wife was being treated for cancer and that appropriately became his focus. We had our first board meeting about a month before the end of his term because we had our annual meeting coming up and had to. That was kind of a lost year. The next year, the chair was a sitting court of appeals justice who didn’t have a staff person that could help out with a lot of the clerical stuff, so that was a slow year.

When I started my year, I had four initiatives. At that point, I think the Section only had 1 or 2 committees. I formed four new committees. One of them was the appellate pro bono committee because I knew there were people that needed more appeals and needed lawyers and couldn’t afford them. I thought we could have a committee to join those two groups up and that committee is still operating and flourishing. We also had a committee that conducted one of the first appellate surveys and surveyed all the judges in the state to ask their thoughts about brief writing and oral advocacy and all the things we speculated about what they wanted, but I tried to get a definitive answer. That has become a cottage industry for Haynes and Boone, and they do it much better. But we formed a committee that year and did the first survey. We also formed a committee to draft to write a Texas Appellate Practice Manual. The first one of those was done single-handedly by Don Hunt in 1976. The second version was done in 1993. Roger Townsend was the editor-in-chief and he had contributing editors who wrote the sixteen chapters. It was a massive project.

Within a year after it was published, the Supreme Court decided to revamp the appellate rules and rendered it obsolete. There needed to be a new version of the manual that would get it caught up. We went a long way down the road that year, and before the end of the year, the State Bar Publications Division told us they didn’t think a manual would be profitable. The last one didn’t sell very well. There were already O’Connor’s books, Orsinger had a book, and Elaine Carlson had a book, and they pulled the plug on that.

The fourth committee was the committee to look at the Texas Lawyer’s Creed. Somebody said maybe we should have an Appellate Lawyers’ Creed. We set up a committee and individually drafted what became the Standards for Appellate Conduct.

Those were the four committees and they all worked out well, except for the one whose project got canceled. I was on the Appellate Section Council again 20 years later and there were like 20 committees. They all do wonderful work, but it almost makes my head swim. I think, “This is a monster that somebody created a long time ago.”

You were there at the beginning when it was a few people around the table and one committee. I’m a little surprised about the State Bar. I understand the profitability issue, but certainly, since that decision to pull an appellate practice manual, that gap has been filled. You mentioned O’Connor’s and then your partner, Robert Dubose, and then some other people in your firm, put together a pretty comprehensive appellate practice manual. It’s a great resource.

We divided that up and almost everybody in the firm at the time wrote a chapter. We wanted to submit it as a book by our law firm, but our publisher insisted that one person be identified with it. Robert either drew the black bean or has gotten lucky, depending on how you look at. His name and picture show up on all the advertisements, but it was very much a firm project.

I’m holding it in my hands here, the Texas Practitioner’s Guide to Civil Appeals 2016. Robert’s photo is on the back cover. Robert has gotten some mileage out of this. It’s something that I went and pulled off the shelf. I keep it close by, although I will admit to also referring to O’Connor’s pretty regularly.

I do too. I think it’s a very valuable resource.

You have an interesting perspective being a trial lawyer and then an appellate lawyer and practicing in both of those courts in different capacities. Can you tell us some of the differences and things that you learned in both of those roles that you apply to the other?

TALP 18 | Texas Appellate Bar

Texas Appellate Bar: In the trial court, you’re trying to adjudicate facts and persuade a jury that your version of the story is right. In the appellate courts, the facts have already been found.

 

It’s hard to say this without sounding somewhat judgmental because I’m very much an appellate lawyer now and not a trial lawyer. Trial lawyers tend to be a little bit more aggressive, combative, passionate, and zealous, and proudly so. They cling to the part of the Rules of Disciplinary Conduct that say, “Lawyers shall zealously represent the interests of their clients.” And they should. I sometimes think that they’re a little bit too zealous. Certainly, the appellate culture is different from that. Most of the people that I’m trying appeals against are my friends. We have a good relationship, argue passionately in the courtroom, and go across the street and have a drink in a bar. Years ago, I had an appeal against David Gunn. After the appeal, this was before the days of email even, but he faxed me a cartoon that was a bunch of medieval knights on horseback with lances. They were standing around after the battle, all beating their lances on the ground saying, “Good battle. Good battle.”

He sent me that right after an argument. That’s the way that appellate lawyers are. I don’t think that’s because only jerks go into trial law and all the enlightened lovely people go into appellate law. It has a lot to do with what their roles are in the justice system because, in the trial court, you’re still trying to adjudicate facts and trying to persuade a jury that your version of the story is right. I won’t say you have to make personal attacks, but undermining the credibility of the messenger on the other side is part of the deal. It’s not that that’s completely untrue in the appellate courts, but in the appellate courts, the facts had already been found, and it’s a lot easier to take a dispassionate view of applying the law to the facts that have been found than it is in the trial court.

I’ve worked on both sides of the personal injury scene. First, as a defense lawyer when I was trying cases and then on the plaintiff’s side when I worked for Jim Perdue. In personal injury, more so than in commercial law, there are distinct sides. In commercial law, it often depends on who gets to the courthouse first as to whether you’re plaintiff or defendant. In personal injury, people on both sides are real true believers. They’re not just posturing. Plaintiff’s lawyers really do think that insurance companies and insurance company lawyers are greedy people and they’re mean-spirited and they don’t want to ever see any plaintiff recover a penny, which is obviously untrue. Defense lawyers think that every plaintiff is a fraud that hasn’t been hurt. The plaintiff’s lawyers are greedy and want to run up the damages because they get 40% of it.

The truth is there are people on both sides that bend the rules a little bit, and there are people that are upstanding, fine, and ethical lawyers, but it’s hard for people who are in the arena to see that and much more so in the appellate arena where people do tend to work both sides of the docket. The facts have already been determined. I think it’s a much more courteous and respectful culture than what you find in the trial court.

That’s true. I’m going to share a little personal anecdote here. It seems like a good place to do it. When I was a young appellate lawyer, I was finally given my very own case to brief and handle as I saw fit under the supervision of the good people I worked with at Fulbright & Jaworski, primarily Ben Taylor. My opposing counsel in that case turned out to be a fellow by the name of Kevin Dubose. I know you don’t remember the case because it’s been a long time ago, but I had the privilege of briefing a case against you. We didn’t interact personally that much. I may be asked you for an extension or two, which wouldn’t surprise anyone, but it was a tragic case involving an injured child and originated from down there in Houston.

I got the privilege of handling the briefing and I got to see what the work product was like coming from an experienced appellate lawyer in Houston. As I say, we didn’t interact a ton, but when we did, it was the kind of interaction you described. It was courteous and sure if you need an extension, no problem. You didn’t even treat me like I was a baby lawyer. I figured at some point in this conversation, I needed to work that in. I was at Fulbright starting in 1997. It’s been a few years. It’s fun for me to recapture that, recount that, and reiterate to the readers that you are living out what you talk about.

What you say about appellate lawyers is true. Some of my best friends are people I’ve had on the other side of cases. We’ve said on this show before how an appellate law really is a superior form of litigation. We can all nod our heads in agreement on that again and there will be people who disagree with us, but it is. It even goes back, Kevin, to what you were saying at the beginning about the physical manifestations of the stress of being a trial lawyer. This is not a job that lacks stress, what we do for a living, but it’s a different kind of stress.

Most of the time, our deadlines can be managed. Mandamus is an obvious exception to that. I recently worked on a case in the Supreme Court where briefs on the merits were requested and each side had 48 hours to draft what turned out to be 70 to 75-page briefs. You occasionally run into that stressful situation, but most of the time deadlines are manageable. Part of the reason for that is the appellate lawyers are good about agreeing to an extension. Some of the most stressful situations I have are when clients don’t want me to. Sometimes I have to talk clients into allowing me to be the kind of lawyer I want to be.

That’s very true. We have talked about this before, but also explaining that you can as oppose an extension in an appellate court, but unless there are real extenuating circumstances, you’re almost never going to do anything but look bad to the court over it. Communicating that to a client who doesn’t have that lens to look through is always a difficult conversation.

That’s what I often mention. I can’t just tell them that it’s not the right thing to do. That’s unlikely to sell them. But when I say we are going to lose, they will get the extension, we’ll look like we’re being obstructionist to the court, and we don’t want that, they often come around.

Some people are upstanding, fine ethical lawyers, but it's hard for people who are in the arena to see that. Click To Tweet

In the beginning, at least, until they hear you say that, they have a hard time understanding. “Why shouldn’t we oppose that? We’re giving ground. We shouldn’t give ground on this.”

That’s one of the biggest obstacles. Another way that I define is the difference between trial lawyers and appellate lawyers. Trial lawyers almost always think everything they say is right and everything the other side says is wrong. Appellate lawyers are much more capable, again because of the procedural difference in where you are in the pipeline, appellate lawyers are much more inclined to say, “We’re never going to win that point and I’m going to drop it rather than making the argument and looking silly and losing credibility on my good argument.”

Sometimes when I go to trial as the appellate consultant, people insist on arguing things that I don’t think are worthwhile arguments. There’s a way to telegraph to the judge that this is not one I’m planting my flag on. That way, when I do pick an argument that I do dig in on, they know that that adds a lot more credibility. If you say that you ought to win on every point, the judge realizes that it’s no longer about truth or justice. You’re a true believer in your side and you will say anything to get the result that you want. If you instead convinced the court that you’ve got discretion and you’re only going to push on this stuff that is really true, it pumps up your credibility phenomenally.

Every time you see the debrief come across that has 15 issues, you have to ask yourself, “Which ones of those are actually issues and which ones of those are things that are thrown in because somebody’s mad about it?”

When I used to teach legal writing, what I would tell my students about that is imagine you’re a judge reading a brief, and most people try to put their best arguments first. That’s a good strategy. Say there’s 15 points of error, and they’ve read through 14 and they’re not convinced by any of them. Finally, they get to your 15th best argument and they’re suddenly going to go, “Oh right.” That’s not going to happen. My old partner, Roger Townsend, talks about the Texaco v. Pennzoil case, where there were 100 points of error.

Thank goodness the rules have changed a little bit and the courts have become more forgiving on how you state your issues and what’s included with that.

To that point, Kevin, I subscribe to the view that if you can’t win and about the first three issues, you’re not going to win. Do you have the same perspective?

I do. I rarely file a brief with more than three issues. I like two better than three. But I’m confident that at least over the last 20 years, you won’t find any with 7 or 8.

I will put an asterisk on that and I agree with you. The only times I’ve done separately is where you have a case that has some weird procedural complexity and you have to challenge some things you might not otherwise challenge to avoid the whole, “They didn’t challenge every ground so you can go ahead and affirm.” Those are the cases where you do it. You hate to do it, but you don’t have a choice either.

If you’ve lost a summary judgment and the court has not stated its grounds and the summary judgment had ten issues or ten grounds, you have no choice in that situation.

TALP 18 | Texas Appellate Bar

Texas Appellate Bar: Appellate practice has a much more courteous and respectful culture than what you find in the trial court.

 

Sometimes I group those together under a Roman numeral to avoid the appearance to the court. Sometimes you just have to.

We talked about when you were working in the first appellate boutique firm that you were in with Roger Townsend and Brett Busby had come in.

It started out with me, David Holman, and Richard Hogan. Roger Townsend, and Jennifer Hogan joined us, David Gunn and Russell Post, then Brett Busby.

These are all people that the appellate bar knows well. There’s been some evolution to your practice and the firm you’re with, Alexander Dubose & Jefferson is the name of the firm. Talk to us a little bit about the firm specifically, how you got in with that group, and how things have progressed.

Our other firm was starting to come apart at the seams. We ended up splitting. There were seven of us. We went to four different law firms. Roger Townsend and I had aligned with each other. We were going to do something together. We were thinking about starting our own appellate firm. Doug Alexander was good friends with my wife in the mid-70s, before he went to law school and before she went to dental school. They worked together at the City of Houston Public Health Department. When I met her, she told me about her friend Doug.

I got to know Doug and we did some family vacations together and knew him on a social level. I remember one time being on a beach trip, we were walking on the beach. He was at Brown McCarroll doing international business and he said, “Let me get this straight. At your firm, you do nothing but appellate work. How does that work? How do you get into that?” I talked to him a little bit and the rest is history. We had remained friends and he came to our house one night for a dinner party to honor some out of town guests. We ended up in the kitchen and he said, “You might be interested to know Woodie Jones and I are about to leave Scott Douglass and form our own firm in Austin.”

I said, “That’s great. Congratulations.” Roger and I had decided to leave, but I had a Supreme Court argument coming up. I didn’t have time to deal with all the fallout. I said, “Let’s wait to announce it after my argument.” I may or may have not told Doug, but the next day I went to the office and I told Roger that I saw Doug Alexander. He and Woodie Jones are leaving Scott Douglass. And Roger comes to see me a few minutes later and he has this master plan. He said, “I think we ought to have a firm with offices in Dallas, Houston, and Austin, and have a couple of people in each city. We can work independently and make our own decisions about overhead and stuff, but work together on cases. Let’s approach them and work this out.”

We did it with Doug and Woodie. Our Dallas plan at the time was Deborah Hankinson. She had left the Court and taught at SMU for a semester. She was practicing with Betsy Whitaker. We talked to them about it but the two of them had a blow-up and Deborah decided she didn’t want to have any partners ever again. She wanted to be Deborah Hankinson & Associates, which she did pretty well for a long time. We didn’t have a Dallas office for about five years, but we opened in Houston and Austin. We then later added Dallas office with LaDawn Conway and Charlie Frazier. We gradually added people over the years.

We did not hire any fresh out of law school associates. We tried to hire people that have established a reputation in the appellate bar. The biggest shot in the arm we got was in 2013 when Chief Justice Wallace Jefferson stepped down from the Texas Supreme Court and decided to join us. He had a lot of offers, obviously, most from big firms, but he’d been with an appellate boutique before he went on the court with that Crofts, Callaway & Jefferson. That’s what he wanted to do ,and we were able to persuade him to join us. That same year Marcy Greer joined us from Fulbright. Those two things together had an impact that has sustained us ever since.

We would be remiss if we didn’t ask you about your recent experience arguing over Zoom before the Texas Supreme Court. It wasn’t that long ago, but I’ve seen that the Court has already issued the opinion in the case. Tell us about what it was like to be a technological pioneer as someone who tells me he’s not a tech person.

If you say that you ought to win on every point, the judge realizes that it's no longer about truth or justice. Click To Tweet

It’s true, I’m not. I had a little bit of a leg up. I’m on a couple of national boards that started meeting by Zoom because it’s cheaper than people from all over the country flying somewhere. I was terrible at it. In the first couple of Zoom meetings, I joined by phone because I was afraid of the technology. My desktop didn’t have a microphone and camera, but I soon figured out that my laptop did. But I was used to using Zoom. That’s the technology I was comfortable with. We were scheduled for an argument on March 23, 2020 and about March 10, 2020, we got an email from the Court saying we’re shutting down.

We were the next case up to be argued. They didn’t handpick our case for the first Zoom case. They decided to try Zoom and went back to their docket and we were the first ones up. They sent an email to Tom Wright and me on April 1, 2020 saying, “How would you like to argue this case on April 8th?” Tom and I both admitted later that the thought ran through our minds. This is April 1st. This is an April Fool’s joke, but it wasn’t. The next thought that ran through my mind is, “The rules say, you get three weeks’ notice. What about that?” My client was hurt in 2011 and the trial was in 2015. I thought, “If we say no to this, and they put us back in the line until they start arguments again, who knows when you’ll get his case argued?” So I agreed.

I usually like to take 2 or 3 weeks to get ready for a Supreme Court argument, but having one week to do it, you tend to compress things much more. I did find it was sufficient. I was worried at first that it would not be enough to get on top of things, but I did. Blake Hawthorne, the clerk of the court, was great. The argument was on Wednesday. We had a practice session with him on Friday to look at our backgrounds, our lighting, and audio and talked about tips for how to do it. He went over what cues we would get and that sort of thing. On the day of the argument, we did the same thing with him for about fifteen minutes before the argument. I wasn’t sure at first, I thought that the Court might be together on one camera, but they were social distancing too. They were all calling in from their homes or offices and once the argument started, I completely forgot about the technology. It became a regular Supreme Court argument, which is daunting enough in itself. I didn’t have any trouble with it at all.

My one complaint was, I’ve always been sensitive. I’ve always been told not to talk over judges. When you hear someone start to talk, you need to shut down immediately and listen to their answer. Zoom has this characteristic where the person that’s talking, this yellow box lights up around their screen. Other things can cause that to happen, like rustling papers or clearing your throat or any kind of noise. There were a couple of times during the argument, one of the justices’ box lit up and I thought they were talking. I stopped dead in my tracks. One time, at least I know that I looked at Justice Boyd and said, “Justice Boyd, do you have a question?” He said, “No, I don’t.” He ended up being the lone dissenting vote against me. I don’t know if that was why. Of course, it wasn’t, but that was one small glitch. Other than that, I could see everyone fine. I could hear everyone fine.

A couple of weeks later, there was an article that came out in the New York Times called Why Zoom is Terrible. That was the title and very much the theme. They said that it causes anxiety and awkwardness and fatigue. People say after several Zoom meetings in a row, “I’m tired. I’m Zoomed up.” That would be true after several regular meetings in the row. I got defensive. I feel like people were attacking my friend or something, I am so thankful that we have Zoom during this period. I can’t imagine what this shutdown period would have been like if we didn’t have Zoom. Especially the oral argument. I know a lot of courts are only doing telephone audio conference argument. I can’t imagine what that would be like.

That seems like a far worse platform, especially in a case like the Supreme Court where you have nine judges and you can’t see any of them. Trying to coordinate that seems like a mess.

I’m a big fan. It’s a great device and maybe it can be perfected a little bit, but I didn’t have any trouble with it at all.

It’s like a lot of other things. We’re sort of being forced to use the technology to make up for where we’re lacking in other areas. We’ve talked a little on this show about what’s their new normal going to look like once we’re through the issues with COVID-19. It’s still open for discussion about what role Zoom is going to play, but it seems like the door is certainly open to Zoom playing a role going forward. Whereas it would have been really difficult to envision the Supreme Court or our courts of appeals routinely having Zoom or video oral arguments.

I always favor live arguments if it’s possible. If for any reason, it’s not, I would agree to Zoom argument in a heartbeat any day.

It opens some access to justice issues that maybe have impaired people, both in the trial courts and appellate courts. Hopefully, that’s something that when all of this is over and we return to whatever normal is, will be one of those lasting legacies of this is that it gets people more ability to get into court and get their cases heard in ways that they couldn’t before.

TALP 18 | Texas Appellate Bar

Texas Practitioner’s Guide to Civil Appeals 2016

That’s true. I’d be perfectly happy if that’s the way it worked out. If, for example, a case gets docket-equalized to another court of appeals a long way off like El Paso. If that was an obstacle for somebody to travel that far and they requested and the court offered a Zoom platform, I’d be happy to do that.

We always like to ask our guests if they have a tip or a war story that they’d like to share for our readers. You’ve given us a lot of great tips and things already, but do you have another one you’d like to share?

The first thing that did come to mind is a couple of humorous anecdotes because they are so few and far between.

We’d love to hear those.

On TV you see trial law a lot, but very seldom appellate law because it is not a rich subject, but there are two stories and they’re both true. One was in the Austin Court of Appeals. The story is that there was a lawyer arguing his first appeal, and he was very nervous. There was a question that came up about the relief that was requested. The judge picked up the brief and flipped to the last page of the brief. There was no heading on the brief that said, “Prayer for Relief.” The justice was confused and said to the lawyer, “Counsel, you don’t have a prayer.” The lawyer said, “I know, Judge. I’m just doing the best that I can.”

The other one was in one of the Houston Courts of Appeals. I can’t remember if it’s the First or Fourteenth. A young lawyer was arguing their first case and very nervous. They started their argument by saying, “I’ve got four points I want to make for the court.” They went through the first one and the court wasn’t convinced. They went to the second one and the court wasn’t convinced. One of the justices tried to cut things short and said, “Counsel, what’s three and four?” The lawyer said, “Seven.”

So there’s a little bit of appellate humor.

Kevin, thanks again for being with us.

 Important Links:

About Kevin Dubose

TALP 18 | Texas Appellate BarWhile an undergraduate at Rice University, Kevin Dubose took a creative writing course from a professor who was a published short story author. Inspired to emulate his mentor, Kevin told his professor about visions of his own future writing career: English grad school, university professorship, writing fiction on the side. His professor’s response was, “Go to law school.”

That turned out to be good advice. Kevin began his career as a trial lawyer, but after 25 jury trials, he transitioned to appellate law in 1985.  He was attracted the more academic and intellectual and less directly adversarial style of appellate law. He was part of the first class of Texas lawyers to become Board Certified in Appellate Law by the Texas Board of Legal Specialization when that certification was offered in 1987. When the Houston Bar Association started an appellate section in the early 90s, Kevin was the second person elected to serve as its chair. Four years later, he was elected chair of the State Bar of Texas Appellate Section.

His analytic mind and ability to communicate clearly and simply about complex subjects serve him well as an appellate practitioner. But what makes it rewarding to Kevin is that he can use his skills to help people resolve their conflicts and improve their lives.

Kevin has also taken a particularly active role in the advancement of legal ethics, professionalism, and civility. He has been a frequent author and speaker in this area and serves on the board (currently as chair-elect) of the Texas Center for Legal Ethics. In 2012, he was awarded the Chief Justice Jack Pope Professionalism Award — the third attorney in the state to receive that award.