State Bar of Texas Annual Meeting 2019: Forms of Address with Judge Roy Ferguson

Episode Notes

Transcript

State Bar of Texas Podcast

State Bar of Texas Annual Meeting 2019: Forms of Address with Judge Roy Ferguson

07/11/2019

[Music]

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.

[Music]

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 Judge.

Judge Roy Ferguson: Thank you very much glad to be here.

Rocky Dhir: Now in full disclosure and you know as lawyers we like to disclose things, or at least we tell our clients that they disclose things. So the Judge and I were talking earlier, and so now tell me Judge, why can I not just call you Roy?

Judge Roy Ferguson: You know like it varies from Judge to Judge, but it is something that everyone needs to be very cautious about particularly if you are close friends with the Judge or you are a lawyer who appears before the judge. My perspective is as a rural judge.

Rocky Dhir: Okay rural, so where are you judging if you will?

Judge Roy Ferguson: I am the Judge of the 394th, I have the five enormous counties out in Far West Texas. The best way to place it for you visually on a map is to say if you take the horizontal line of the New Mexico Texas border.

Rocky Dhir: Sure.

Judge Roy Ferguson: Going East from El Paso.

Rocky Dhir: Right.

Judge Roy Ferguson: And you drop straight down to the bottom of the Big Bend, which is the bottom of the bend in the river.

Rocky Dhir: Sure.

Judge Roy Ferguson: All of that in between is my district.

Rocky Dhir: It’s a big area.

Judge Roy Ferguson: With the exception of El Paso County itself.

Rocky Dhir: Okay, that’s the huge area.

Judge Roy Ferguson: It is roughly 20,000 square miles high, it is slightly smaller than West Virginia, I think it would be the 10th smallest state if it were state.

Rocky Dhir: If it were state, okay. Wow, Wow. Okay so now, I’m sorry I interrupted you, but you were saying that calling you by first name or calling you Judge out in public, there is some rationale behind that. So walk us through that?

Judge Roy Ferguson: There are some competing issues.

Rocky Dhir: Okay.

Judge Roy Ferguson: We want to be as anonymous as possible when that’s our goal. When we’re not campaigning or trying to be seen or with our families for example, we don’t really want people to know who we are if we’re out to dinner with our children.

Rocky Dhir: Sure.

Judge Roy Ferguson: So there are security issues. For example, I never put a picture on social media or in an interview on the paper with my children, because it makes them targets. I don’t want anyone to know what they look like. If I am in a public setting and someone calls something out and that draws attention to me, then it could put my children at risk.

Rocky Dhir: Okay sure.

Judge Roy Ferguson: So you think calling a Judge by their first name would be okay. The problem is we are equally aware of the appearance that we put on for the people around us and where I am in these smaller county — well less populous counties.

Rocky Dhir: Sure.

Judge Roy Ferguson: Everyone knows who I am because there’s only one District Judge for these counties, so I handle every case for the population of these five counties. They know who I am and if someone calls me by my first name in public, I am immediately worried about who is in the room, what kind of a perception are they going to get, there could be someone who’s a litigant right now sitting two tables over, and if they see the opposing counsel or the opposing party call me by my first name, they are immediately going to presume that there’s a relationship there that goes beyond Judge litigant.

And so they start to worry that like I said before the fix is in, they might be worried that I’m going to be biased, it certainly could give the appearance that I favor this person because they call me by my first name, because it’s not normal for people to call judges by their first names.

And so this litigants — there’s no way that a defendant in a CPS case is going to walk up to me in public and call me Roy, they’re not going to do it.

Rocky Dhir: Right.

Judge Roy Ferguson: So when someone else does it and they see it, they realize how wrong that is to and you would mention well maybe in the cities it’s not that big of a deal.

Rocky Dhir: Yeah because like we’re here in Austin, right, so if I see you — if I see you on a street in Austin, I’m like hey Roy, and who would know.

Judge Roy Ferguson: Right, it doesn’t take long of being on the bench. I mean my seventh year on the bench, and part of the growth process as a Judge is not just learning how to rule and learning how to be a judge on the bench. But you also have to adjust your entire life around the job. For a while people believe exactly what you just said, that if I’m not in the courthouse or I’m not in my town or I’m not within my geographical district, I’m anonymous, I’m invisible.

(00:05:07)

I will tell you that, that is not true anymore. The world being what it is, and technology being what it is, we are recognizable for a reason you would never know, your picture could be up somewhere, there could be a video of you walking down the street on YouTube that you don’t know is there and there could be people — it goes viral and you don’t know it.

I will tell you I have had experiences, one where I was 700 miles away from my district, it was about 11:30 at night and I was at a hotel and their restaurant was closed. And so I decided I need to eat something so I literally walked out the door of the hotel and just started walking, looking for a place to eat.

Rocky Dhir: You were looking for a Taco Bell, right? That’s something.

Judge Roy Ferguson: Anything, Taco Bell would be one. So I am walking, I come to a strip center that has a little dive bar and restaurant grill at the end of it.

Rocky Dhir: Right.

Judge Roy Ferguson: There’s hardly any lights, it’s a seedy looking place, but I’m thinking like there’s food there. So I go walking in, I sit down at the bar, there’s one other person in this bar nursing some sort of a drink, and I order food, and I’m waiting, and I feel someone looking at me, and so I turn and look down the bar and the person says you’re Judge Ferguson –

Rocky Dhir: And all the gin joints in all the world.

Judge Roy Ferguson: And your hands go numb because you are completely unprotected who knows who this person is.

Rocky Dhir: Sure.

Judge Roy Ferguson: And I said you have made a disadvantage, have we met? No. Okay, he said you were the Judge on a family law case for one of my friends.

Rocky Dhir: Wow.

Judge Roy Ferguson: Okay, this could go either way. Long and short of it is he was friends with someone who I had ruled against and was irate and threatening and it was an unpleasant moment sitting there in the dark knowing that I was going to have to walk a half a mile through the dark in Houston to get back to my hotel, and I had walked through a parking garage. I was completely exposed. That was an unpleasant moment of realization that I was not anonymous even with one person 600 miles away from my district.

And I had a similar event on a cruise, my family and I were on a cruise, we were thousands of miles away on the ship and someone called out my name, not Roy, Judge.

Rocky Dhir: Judge, that’s become your new first name.

Judge Roy Ferguson: That’s right. And what are the odds is all I could think, what are the odds, well it actually turned out there was another person on the same ship who knew me. So there were two people on a ship of about a thousand cruisers who knew who I was for different reasons.

You are never actually invisible, and so we have to be cognizant of what happens around us. I do not want to be removed from a case because of the appearance of impropriety, because someone called me by my first name. And I have found that in large part the lawyers, not my friends, but in my district, the lawyers who call me in the courthouse by my first name are not in fact my friends, they’re doing it to set themselves apart or send me a message that they don’t consider me to be loftier than they and of course they’re right, it’s just we’re all doing different jobs.

Rocky Dhir: It’s different – different functions.

Judge Roy Ferguson: But they’re sending me a message. So —

Rocky Dhir: So what about your friends, as you said they’re not your real friends, right? Your real friends have a different way of doing this. What do you do, say your childhood friends who’ve known you for a long, long time, how do you set that up, right, when you became a Judge, you have to sit down and talk with them and say look there’s a new reality now or how did you — how did you navigate that?

Judge Roy Ferguson: It is awkward you don’t want to be accused of what everyone fears when a new judge takes the bench and that is black-robe disease that’s what they call it. When we get the black robe on suddenly you think you’re better than everyone else.

Rocky Dhir: Sure.

Judge Roy Ferguson: They use that terrible word ascend and I know they mean that word to mean stepping up the steps to the Bench as opposed to standing on the floor.

Rocky Dhir: Right.

Judge Roy Ferguson: But that’s not how people hear that word, they think of it like ascending on a cloud into the heavens as God. And it can be awkward. I don’t recall sitting anyone down and having that conversation, I think my true close friends simply understood that when we’re in public, they can’t treat me like the same old person, because someone is always watching.

(00:09:59)

We can’t joke around the same way, we can’t have that second or third beer at the Bar, we can’t wear graphic t-shirts, every time I leave the house I have to wear something nice, even if I’m going to the grocery store on Saturday.

Rocky Dhir: So then with your close friends if you do want to kind of let your hair down if you will, you have to do that in private, somebody’s home and you have to trust that they’re not going to take pictures and post them, is that — or are you just always on?

Judge Roy Ferguson: It’s a tough question. I’m concerned about how those answers sound.

Rocky Dhir: Sure.

Judge Roy Ferguson: There are times in places that I’m willing to go where I will relax, but I don’t relax to the point that I’m oblivious.

Rocky Dhir: Always aware.

Judge Roy Ferguson: I am constantly aware, and I’m always filtering what I say. I have to even be aware of what I laugh or smile at. If someone to laugh though —

Rocky Dhir: Is that why you are not laughing at any of my jokes? I mean I’ve been throwing down some one-liners here hoping to get a reaction and this guy is stone-faced. You can’t see it, but boy he’s — I mean he’s not taking the bait, that that’s good. You’re are well-versed.

Judge Roy Ferguson: We have to be careful. You know as well as I that all you have to do is smile at an inappropriate joke and the headline is not local plumber tells inappropriate jokes –

Rocky Dhir: It’s the Judge that laughs.

Judge Roy Ferguson: The headline is Judge laughs it up at the expense of whomever the joke was about.

Rocky Dhir: Sure, sure.

Judge Roy Ferguson: If I am far enough out of town and I’m with just the right people then I will relax, but when I’m in my district even at social events, I’m always on.

Rocky Dhir: So that means even when you’re out with your family, with the kids?

Judge Roy Ferguson: Yes always.

Rocky Dhir: So the kids know that daddy has to maintain a certain decorum at all times?

Judge Roy Ferguson: We have higher expectations of their behavior because people are judging me. Remember, I’m the CPS Judge, I’m the Family Law Judge.

Rocky Dhir: Right.

Judge Roy Ferguson: I decide best interest. I decide who is a fit parent for everyone in my district. If I go out in public and my kids are running amok or using foul language or I’m not controlling them appropriately or I over discipline them, or I use an inappropriate word in my kids’ presence or I treat my wife poorly or show some misogyny, anything like that reflects on me as a judge and whether or not that person thinks I am fit to decide whether they are fit.

So my kids have known from the very beginning when we go out in public more is expected of your behavior, I’m not going to let you run amok or go outside and play in the fountain with the other kids, because I will be judged by that.

Rocky Dhir: This sounds like — I don’t know how many people who actually run for judge ever think about this. This sounds like something you just — I guess you just learn once you — once you’ve donned the robe, but for you was there a moment when you said, okay my life has changed now, did you know the minute you became a judge or was there like a lightbulb moment where you said all right, things have to change, I got to adjust my behavior?

Judge Roy Ferguson: There was a moment.

Rocky Dhir: Okay.

Judge Roy Ferguson: I’m actually working on a paper and a presentation for young judges, new judges I should say on this very issue, speaking from the perspective of a rural judge, because I recognize there are differences between judges who are in a building with 75 other judges and judges who have to drive three hours to see another judge like I do.

I believe that most judges think that the loss of personal relationships and the changes on your personal life won’t happen to them, and in fact if you engage some new judges particularly younger new judges on that, they will say things like who I am is what got me elected and I’m not going to change that for anyone.

Rocky Dhir: I’m still me, right?

Judge Roy Ferguson: We don’t argue with them over that because we know that the realities are going to change their mind. That moment for me was — there was someone who was a lawyer, who was friend of mine and we were just hanging out one day and had a conversation that seemed innocuous to me, lawyers chatting, we talk about old cases and who knows what and we were chatting about some old case and about a month later that lawyer appeared before me and quoted back to me something that I had said that night at the Bar over drinks.

Rocky Dhir: Wow.

Judge Roy Ferguson: And –

Rocky Dhir: And this is germane to a case that you were presiding over, wow.

Judge Roy Ferguson: That hadn’t yet been filed.

Rocky Dhir: Oh, so you were going to be presiding with that?

Judge Roy Ferguson: Of course, I wouldn’t have had that conversation if I’d known that this lawyer was in my court and had a case. I thought we were just telling war stories, but we weren’t apparently.

(00:15:05)

And at that point, I sort of glazed over for a minute because I knew, he knew what he was doing and I knew he knew that I knew what he was doing, and yet he did it anyway. And this is someone I’ve known for 20 years.

Rocky Dhir: Changed your opinion of that person I would imagine.

Judge Roy Ferguson: No, it changes your perspective — it makes you realize that as lawyers, we are always working for our clients. We are always fighting for our clients and that my prior relationship with someone was not going to insulate me from that fundamental goal of the lawyer, which is zealously advocate on behalf of your client.

So I didn’t think he was a bad person, I still don’t. We were still friends. I just realized that I’m always on. That was a moment like you thought where I should be able to 100% let my guard down. This is a friend I’ve known forever, outside of the courtroom, buddies, families get together, we were friends.

And I realized at that moment even he could not resist the temptation to use the relationship to gain an advantage. And that moment was the lightbulb and I actually went home and told my wife in a quiet moment, you need to be aware of this too, not about that person, but that you are an extension of me and they will milk you for seemingly innocuous information, to get a little bit more information they can use in the case that I am presiding over. And in fact that has happened, that has come to fruition. She has realized that. That’s true.

But that is a painful realization, because at that moment you realized that the relationships you had don’t exist anymore. You still have relationships with those people, but they’re different.

Rocky Dhir: They have evolved or they’ve changed in some way.

Judge Roy Ferguson: And it’s not — it’s not malevolent. They’re not bad people, it’s just different and that isolating realization can be very painful.

And so there are ways that we can change that, but once we realized that and we change our behavior, they realized we’ve changed our behavior and they don’t understand why. And so what do they presume?

Rocky Dhir: Ascending to the bench.

Judge Roy Ferguson: Exactly right. He just thinks he’s better than everyone else because he doesn’t come over when I invite him to parties anymore. I had a birthday party, he came eight years in a row and he won’t come in anymore when he’s invited. And so they think that maybe the judge no longer thinks they’re one of us and you’re a lawyer too, I hear that all the time.

Yes, you’re a judge but you’re still a lawyer, you didn’t stop being lawyer, well that’s true, but the relationship between Roy, the Judge and Roy, the lawyer is different. And I honestly believe that you cannot truly grasp the depths of the difference until you experience it, because telling people doesn’t help them.

Rocky Dhir: Doesn’t quite do it.

Judge Roy Ferguson: They think it won’t be me and I’ve been told that I have talked to some people about that, some new judges at a new judges’ school before and this one judge looked at me and said that won’t be me. My friends are my friends, and that was another liable moment of you can’t hear it, you have to endure it.

Rocky Dhir: Well, Judge, one last question before we kind of wrap this up. There’s a lot to digest here. One last question is as this develops and you submit your paper and you talk to new judges about it, would you mind coming back on the podcast and maybe telling us what you’ve learned from the other judges and their stories, would you mind sharing that with us down the road?

Judge Roy Ferguson: I would be happy to do that. I have sent polling information out and asked judges about their experience. The percentages are higher than you would imagine but I do find it, it’s generational, it’s urban versus rural. There are a lot of things that factor in. So it is not a consistent thing for everyone, but to some degree I believe everyone experiences that.

I would be happy to come back on and talk about it a little more. It may be a little premature to talk about it now.

Rocky Dhir: Well and plus, it’s also for a lot of us that do live in the bigger cities, it will probably help us understand how to be more sensitive to the judges that we know from before they “ascended” to the bench.

Well Judge, it looks like we’ve reached the end of our program. I want to thank Judge Roy Ferguson for joining us today. And if you have any questions out there, you want to know more about this topic and everything you’ve just heard, please feel free to email the court coordinator for the 394^th District Court out in West Texas.

(00:20:08)

Judge, is there anything you’d like to leave us with before we wrap up?

Judge Roy Ferguson: Well, first thank you for having me on and addressing an issue that is important, but no one seems to know, but it’s time for that issue to be a little bit better known certainly among the judges. I did want to mention that the difference in the way that we act in public is not just a reflection of feeling differently because we took the bench.

Our conduct as judges is governed by the canons of judicial conduct and the canons make clear to us that our behavior in our personal lives is held to the same standard of review as our behavior on the bench. We are not to do anything that lessens or calls into question the dignity of the office, the dignity of the judiciary; whether we are on the bench, at a campaign event or at a pie in the face fundraiser for an elementary school.

Rocky Dhir: Right.

Judge Roy Ferguson: Everything we do is evaluated on dignity and professionalism and appropriateness and whether it reflects poorly on the judiciary as a whole; and in fact, if you violate one of those rules, if you act in a way that brings embarrassment to the bench or lessens the dignity of the office. The more public it is the greater the potential risk of sanction, the greater the sanction may be.

So in fact being  personally on your own with your family in public may give you risk of a greater punishment than if you had done it in the courtroom or in private or at a private campaign event.

So it is not merely judges thinking of themselves differently. The Code of Ethics for the judiciary of Texas mandates that we act differently in public than we did before we took the bench.

Rocky Dhir: Wow, wow, big, big, big topic. Well, 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 and review us in Apple Podcasts, Google Podcasts, Spotify or your favorite Podcast app. I’m Rocky Dhir, until next time thank you for listening.

[Music]

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.

[Music]