State Bar of Texas Annual Meeting 2019: A View from the Bench with Judge Roy Ferguson

Episode Notes

Transcript

State Bar of Texas Podcast
State Bar of Texas Annual Meeting 2019: A View from the Bench with Judge Roy Ferguson
06/13/2019

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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice, with your host Rocky Dhir.

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Rocky Dhir: Hello and welcome to the State Bar of Texas Podcast recorded from the Annual Meeting in Austin, Texas. This is Rocky Dhir and I am the host for today’s show, which is being sponsored by LawPay, trusted by more than 35,000 law firms to accept legal payments online. It’s the only payment solution offered as a member benefit by the State Bar of Texas.

Joining me now I have the Honorable Roy Ferguson. Welcome to the show judge.

Judge Roy Ferguson: Thank you for having me.

Rocky Dhir: Well, before we get to your topic, it’s A View From the Bench: Simple Things Everyone Does Wrong, please tell us more about yourself. I know you are a judge, but where are you a judge?

Judge Roy Ferguson: I am the District Judge of the 394th Judicial District. That is a five county district in Far West Texas. So it runs along the Texas-Mexico border, from the El Paso County line, down around the bottom of the Big Bend. It’s five counties, roughly 20,000 square miles, which is slightly smaller than the State of West Virginia.

Rocky Dhir: Wow, that’s a big area, and you are the only judge out there?

Judge Roy Ferguson: There is a partial overlap with the 205th out of El Paso into the two least populous counties right next to El Paso, just because of the amount of criminal cases that we have coming from the checkpoint of the stars, which is the one on I-10, that catches all of the tour buses, some famous people you have heard of who have been busted for having illegal substances on their tour buses. We get about 50 indictments a month from that one checkpoint in a county of a couple of thousand people. So they do have another judge that comes down and covers a portion of those cases.

Rocky Dhir: Interesting. Now, when you are talking about Simple Things Everyone Does Wrong, are you talking about what lawyers do incorrectly in court or is it what litigants maybe don’t know about the legal process, tell us about the breadth and scope of your topic?

Judge Roy Ferguson: The goal was to take things that are a great risk to the recovery of the client that sometimes lawyers do wrong thinking they are very simple, and they may be easy, but they are usually not simple.

Rocky Dhir: Okay, you got some examples for us?

Judge Roy Ferguson: I sure do. The three issues that we addressed today were getting citation by publication, which is serving someone who you can’t find to hand it to them, you serve it through the newspaper.

Rocky Dhir: Right.

Judge Roy Ferguson: Then we addressed default judgments, which is getting what you want without the other person having the chance to show up and defend themselves because they didn’t answer the lawsuit.

And then, correcting mistakes that you made in judgments after the fact, once you realize you have made a mistake. Those are called nunc pro tunc judgments.

Rocky Dhir: It’s one of my favorite phrases.

Judge Roy Ferguson: It sounds cool.

Rocky Dhir: Yeah, it just sounds cool.

Judge Roy Ferguson: Well, unfortunately, with each of those three things, if you make a mistake, your judgment is void, which means no one has to attack it. They just have to wait until you try to enforce it or execute it and when they point out the mistake that you made, your judgment is no good.

Rocky Dhir: It’s too late.

Judge Roy Ferguson: It’s dead.

Rocky Dhir: Wow.

Judge Roy Ferguson: And because there is no one to point these mistakes out while you are there, because it’s a default situation normally, it’s all up to you. And so the worst case scenario is that you do it wrong and the judge grants your judgment anyway, because it’s just laying there. It’s a time bomb waiting to be discovered and go off.

So my goal was to pick these three things that render void judgments and try to help people do them right the first time rather than finding out later and having their malpractice insurance carrier be the one to tell them that they have made the mistake.

Rocky Dhir: Now, do you think this is happening because maybe Texas law or Texas procedure needs to plug a hole that is commonly occurring, or do you think it’s because lawyers are just not paying attention to some simple wrinkles in the law that they are kind of taking for granted? In other words, is this on the law or is this on the lawyers?

Judge Roy Ferguson: The procedures are already in place and they are effective for doing the job. I think that what happens historically is these things have sort of fallen out of the lawyers’ public consciousness because there is no one to dispute what you are doing. If you are getting citation by publication, most of the time the person doesn’t see it in the newspaper and so they never show up and no one ever challenges whether or not the judgment is legit based on that one issue.

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Rocky Dhir: Right.

Judge Roy Ferguson: Remember these are things that a lot of people just don’t realize how complicated the process can be and they don’t know what the steps are because they have never been challenged on it, but if the lawyer representing the person in the future also doesn’t know the proper procedure, they don’t bring it up to the court to try to stop the execution. So basically the mistake is mirrored by both of the attorneys at two totally different times and it’s never pointed out.

There are moments where it gets discovered and those moments go up to the Court of Appeals and the Supreme Court and they give us the correct way to do it, or more to the point, the wrong way to do it; they tell us we did it wrong, but it’s still a minor, little fraction of those mistakes ever get discovered.

So I don’t think it’s necessarily — I think the law is fine, I think the procedure is fine, I just think — that’s why we do these CLEs is to teach people things that they may not have ever known or remind them what they have forgotten.

Rocky Dhir: So reason for showing up to things like the Annual Meeting, because this is a fascinating topic. So it sounds kind of as if here we have got a scenario where it’s actually in your clients’ best interest at times to have an adversarial process, to have an adversary there, so that way these types of issues can be ironed out before it’s too late. Would you agree?

Judge Roy Ferguson: It’s funny, if they make these mistakes and they are made all the time, all the time, there are two possible outcomes. One is the judge knows the law, the judge catches your mistake and you get embarrassed, because you are going to be embarrassed when the judge says, by the way, you screwed this up and I am not signing your judgment.

The alternative is worse and that’s that the judge doesn’t bother to pull the file, review the citation, review the return, check your pleading and make sure what you have asked in your default judgment was requested in your pleading. Make sure that you have served your amended pleading by Rule 21A on the defendant even though they are in default posture and they just grant your judgment, because then it’s a void judgment. It’s of no value.

So in which situation are you better off? You might think you are better off as the lawyer individually if the judge signs the judgment, because it makes you look good, but your client is far worse off.

Rocky Dhir: Right. So it’s a Pyrrhic victory at best.

Judge Roy Ferguson: Your client is better off if the judge catches the mistake and makes you fix it, but you have been embarrassed personally as the lawyer. So there is no good outcome to doing these things wrong.

Rocky Dhir: All right, so one last question. What would you recommend lawyers do, for lack of a better term, to bone up on these types of procedures, is it just a matter of reading the rules or are there treatises? How would you go about instructing people or maybe guiding them on how to get better?

Judge Roy Ferguson: Texas Bar CLE does a really good job of identifying topics of interest to lawyers. The law is huge and it changes every day, and every two years it gets completely rewritten in countless ways. I think it’s impossible for someone to keep up with everything about the law, you just can’t do it, but what you can do is find these CLEs, go to these conferences, join the Texas Bar College, as it were, get access to these articles and read. If you treat yourself as a legal scholar and read all the time, learn something new every day, then the odds of making that kind of mistake are a lot less.

The other thing you do is every time an issue comes up and you don’t know the law, go look it up. Don’t just guess, don’t just submit your citation by publication to the judge, pull out the rule, read Rule 109, make sure you know exactly what it is you are doing, take the 10 minutes and then you won’t make those mistakes.

Rocky Dhir: And don’t just ask somebody else and do exactly what they say, you want to actually read the rules yourself and make sure that it comports.

Judge Roy Ferguson: One way to guarantee you do everything wrong is to do it the way it’s always been done.

Rocky Dhir: I think we need to make that into a bumper sticker of some kind.

Judge Roy Ferguson: There we go.

Rocky Dhir: Yeah, we can talk about that once we are off the air.

Well, it looks like we have reached the end of our program. I want to thank you Judge Ferguson for joining us today.

And that is all the time we have for this episode of the State Bar of Texas Podcast, brought to you by LawPay. Thank you again LawPay.

Also thank you to our listeners for tuning in.

If you like what you heard, please rate us and review us in Apple Podcasts, Google Podcasts, Spotify or your favorite Podcasting app.

I am Rocky Dhir, until next time, thank you for listening.

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Outro: If you would like more information about today’s show, please visit legaltalknetwork.com. Go to texasbar.com/podcast. Subscribe via Apple Podcasts and RSS. Find both the State Bar of Texas and Legal Talk Network on Twitter, Facebook, and LinkedIn or download the free app from Legal Talk Network in Google Play and iTunes.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by the State Bar of Texas, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

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