A Justice’s Legacy: A Conversation with Chief Justice Nathan Hecht

Episode Notes

Transcript

Rocky Dhir:

Hi, and welcome to the State Bar of Texas podcast. I’m getting to that age. I’m going to turn 50 in November of 2024 that all the vestiges of my youth are disappearing. The songs that to me are still fresh and relevant are now playing on the oldie station, but then there are things I look back on and I just smile because they happened. Ever since my legal career began in 1999, the words Supreme Court of Texas and Nathan Hecht were always spoken together. I’ve never known a time when Nathan Hecht was not on the court. For those who might not know, Nathan Hecht became Judge Hecht in 1981, having been appointed to the district court. He was then elected to the Court of Appeals in 1986 and then quickly became Justice hacked in 1988 when he was elected to the Supreme Court of Texas, an institution where he remained and eventually ascended to his current role as Chief Justice in 2014. He was reelected in 2020 and now here we are. It’s 2024. Chief Justice Hecht is the longest serving member in the history of the Supreme Court of Texas and the longest tenured Texas judge in active service, and he’s also about to embark on a very well-deserved retirement from service. So please help me welcome our very own and our very renowned Chief Justice Nathan L. Hecht. So chief, welcome, welcome to the podcast. We’re glad to have you.

Chief Justice Nathan L. Hecht:

Thanks, Rocky. Good to be here.

Rocky Dhir:

You’ve been on the bench far longer than you were ever in private practice. What led you to make the leap to becoming a member of the judiciary?

Chief Justice Nathan L. Hecht:

I clerked for a judge after I got out of law school on the DC circuit and we got to be good friends. I really admired him deeply. I just thought maybe someday I might be on the bench. 1981, the court of appeals was expanded given criminal jurisdiction. The size was increased by about half, and so there were all these judicial openings and Governor Clements was looking around for younger people. I applied and one thing led to another and there I was.

Rocky Dhir:

Now that you’re retiring, you can be totally honest. Do you ever miss law practice?

Chief Justice Nathan L. Hecht:

I haven’t. More recently, but at first I enjoyed law practice. I was a partner in the firm. It was a business trial practice and I enjoyed the work. I’ve enjoyed the bench too, and as I’ve got further from the practice, it’s kind of more of a memory these days.

Rocky Dhir:

What was the biggest surprise to you when you became a judge going from private practice to being a judge? Was there something you said, oh wow, I never knew this is what it’s like behind the bench?

Chief Justice Nathan L. Hecht:

As I say, I’ve been a trial lawyer, business trial lawyer, so I knew about the Courtroom part. What I didn’t know about was the vaccines, the administrative part. How do you make the court function? What about the juvenile board? What about getting coordinators for the courts? What about working with the sheriff on security, all these things that are part of the judge’s job to make the thing work, to keep the thing going. I had no idea that’s what they did.

Rocky Dhir:

Once you became an appellate judge, you got onto the Supreme Court. What do you think is the biggest misconception practicing lawyers have about Supreme Court practice or what happens behind the scenes at the Supreme Court of Texas?

Chief Justice Nathan L. Hecht:

I think they do not have a good idea of how we work together. For example,

Rocky Dhir:

You’re talking about the different justices on

Chief Justice Nathan L. Hecht:

The Yes, and especially on the court of appeals. When you’re working with two other judges on a case, it’s not the same, but on the Supreme Court you’re working with eight other judges and you’re working on hard cases and important cases and you don’t agree and you’re sitting there right next to each other at a big table and you’re going around the table one at a time. It’s very formal because we don’t want any of this. Oh, come on Nathan, that’s ridiculous. We don’t use first names.

Rocky Dhir:

Oh, you don’t use first names?

Chief Justice Nathan L. Hecht:

We don’t use first names. We speak in turn. Every once in a while we get into a little bit of a dialogue and somebody says, well, what about this? What about this? But that’s to keep from having any arguments, any personality get in the way of trying to come to a decision, and you’re sitting there and you’re going around the room, judge next to you, he hears what you say or she and they say, I just totally disagree with that. I just think that’s completely wrong. And you’re sitting there thinking to yourself, what’s happening? Why don’t they see it my way? Then you go around the table, then you go to the next case and the next case you say something, the judge next to you says, that’s brilliant. That’s great. I totally agree with that. There’s all of this shifting around and there’s not the, what should I say? There’s not any stridency like there sometimes is in the Courtroom where lawyers are taking each other on arguing back and forth. It’s all very collaborative,

Rocky Dhir:

I guess more collegial than what you might think.

Chief Justice Nathan L. Hecht:

Yeah, people don’t pull their punches, but they say what they need to say, but at the end of the day, you got to get the work done and you got to be friends doing it.

Rocky Dhir:

I didn’t know about the formality where you guys don’t use first names. It’s all justice and going about it in a very respectful manner. Is that something that you instituted as chief justice or is that something that’s always been on the court and more importantly, do you think that that’s going to change over time as our national and international culture just kind of starts shifting?

Chief Justice Nathan L. Hecht:

I think it’s been there the whole time. In 1989, Tom Phillips was chief justice and he had clerked on the court back in the seventies, and I think that they pretty much all used justice, so-and-so and not first names, and all of the work really on the third floor, a bit of formality keeps order, keeps everything moving, prevents hard. People don’t come away saying that that was unfair, that I was treated unfairly. Any of that and will it change? I don’t think so. I think all nine of us think it’s a good thing that it works.

Rocky Dhir:

One of the biggest questions that I always hear, or one of the biggest sources of speculation is what cases will the Supreme Court take on this term? Which kinds of cases do we think the court is going to use as discretionary review to actually review? In your view, what do you think will be the Supreme Court’s focus in the cases of the future? Where do you think this is going to go in terms of how the Supreme Court of Texas sees the cases that warrant discretionary review?

Chief Justice Nathan L. Hecht:

I think it’ll stay mostly the same in deciding which cases to hear, argument in and decide. The court has never had an agenda, so I remember several years ago we were written up in some national journals as having one of the most important insurance dockets that year of any state court in the country.

Rocky Dhir:

I think I remember this.

Chief Justice Nathan L. Hecht:

We didn’t pick that. We didn’t say, oh, you know what? Let’s decide some insurance cases. Those might be the last ones we wanted to decide. Oil and gas. We don’t say, let’s make this an oil and gas term. You’re just going through the cases as they’re filed and sometimes for reasons having to do with outside of what’s going on in the world, they take on a particular flavor At election time, we get election cases and off years we don’t. So how do we decide The nine of us all have individual standards. The test, the litmus test is important to the jurisprudence of the state, but what’s that? Sometimes it can be a little bitty thing, a little bitty procedural thing, but it comes up all the time. It’s very important in deciding custody cases, even though it might seem like a little thing and it’s not going to be written about in the Dallas Morning news of the New York Times. It’s important to the fabric of the laws, and then of course there are big cases that everybody knows you’re going to take and they have to be decided.

Rocky Dhir:

Chief, we’re going to talk for a second about your career kind of looking back, but before we do, we’re going to take a quick break. We’re going to hear from one of our sponsors, and when we come back, we’re going to continue on with Chief Justice Nathan Hecht, and we’re going to look back on a very, very stellar career. So stick with us. We’ll be right back. Okay. We are back with Chief Justice Nathan Hecht. As we look back on his amazing career, the longest serving chief justice in the history of the Supreme Court of Texas. Looking back, what were your proudest accomplishments during your tenure in your career?

Chief Justice Nathan L. Hecht:

Well, again, I enjoyed the Courtroom. I enjoyed deciding cases, but I guess the things I’m proudest of are more on the administrative side, probably close to the top, is being able to improve access to justice for the poor. The court has been supportive of access to justice since before I got there. Chief Justice Pope was a strong leader in the time that I’ve been there. Lots of different judges have worked on it. It’s a national thing. It’s been good to go to the Congress to talk to legislators, to try to get them to see how important it is not just to the justice system, not just to the legal profession, but to society as a whole, that people who need basic civil legal services and can’t get them because they can’t afford ’em, have some kind of access to them. So I’ve worked very hard on that and we’ve seen some progress and it’ll never get saw. There are too many people who are in those circumstances, but it’s good to work on them.

Rocky Dhir:

It’s funny you say we won’t get solved, but it sounds like the problem is effectively an economic one. People can’t afford a lawyer. Would you agree with that?

Chief Justice Nathan L. Hecht:

Yes.

Rocky Dhir:

Is there something we as a profession can do to make justice more affordable as you look back over time, because you’ve been doing this a while and as you said, we’ve not solved the problem, but is there something we can do to make it more affordable so that lawyers can make a living even a good one while still helping those that may not have the means that would pay the high hourly rates that we do now

Chief Justice Nathan L. Hecht:

For the very poor who live below poverty levels, theBar has always stood to the challenge by pro se, by pro bono representation, representing people for free. Lawyers can do that. They do do that. The need is too great, but it’s a demonstration of how important it is to the legal profession to do that. Then we can all help try to encourage policymakers to appropriate public money to hire lawyers that will provide legal aid services. Got lots of legal aid providers in Texas and across the country, and so we can do that for people who don’t qualify for legal aid because they make a little too much more than the line, but who are still not in a position to pay stiff legal fees. We can try to make key services available to them, like to help with debt collection cases of which we have a huge amount helping the family court, those kinds of things.

And then finally, the courts just need to figure out ways to run better. So we’re not good at that. Lawyers don’t like change, and courts are lawyers and judges, so they don’t like change, but along comes Covid and what do we have to do? We have to change. And what was the first change? Zoom. Zoom. So now courts can make it possible for litigants to attend hearings, parties, lawyers to be present, to participate in a hearing, sitting at home, taking a few minutes off work, going to break room and using their laptop, their iPhone. There are lots of different ways that you can participate that way you don’t have to take off work, go downtown, sit around the courthouse all day long. It has improved efficiency participation. Again, it’s a factor. It doesn’t fix everything and Zoom doesn’t work everywhere. It doesn’t work well for jury trials. You can try case. There are hundreds and hundreds of cases that get tried in Texas that are very simple cases. A lot of ’em are misdemeanors and maybe it’s a jury trial and the whole trial takes four hours or five hours. They pick a jury at nine o’clock, they put on a couple of witnesses, they get a verdict by lunch. Those cases can easily be tried by Zoom. A great big personal injury case, of course not, but making the system work better can bring down the

Rocky Dhir:

Cost. What about the discovery process? Do you think we need to streamline that or make it more, there’s just so much back and forth. I mean, I think we as lawyers all complain about it and we all understand it, but there’s a request and then there’s the proforma objections, and then you go to have a hearing and then there’s all these documents going back and forth when really at some level, a lot of these cases, at least on the surface, seem to be pretty cut and dried if we just get to the documents and get to the merits. Quickly. In your time on the bench, have you ever given thought to how we improve the discovery process?

Chief Justice Nathan L. Hecht:

In the late nineties, it changed the discovery rules. We completely overhauled them. One important feature was to put a time limit on depositions of five hours. There was a lot of concern at the time that this isn’t going to work. Five hours is too short, there’s no cookie cutter thing. You got to look at each case separately. Yeah, yeah, yeah, that’s all true. But we got to have an idea in mind that the clock is ticking and money is at issue and we need to get on with it. So we also changed the deposition rule to not let lawyers interrupt during the deposition and coach the witness and try to throw off the questioner. I think it’s worked. It’s helped in a little ways. It hadn’t solved all the issues that we’re talking about. Ultimately, the only way you can solve all those issues is they don’t exist in every case. So Texas is deciding right now about 6.9 million cases a year, and we got 3,200 judges. So this is just a handful of cases. In those cases, what you really need is the judge to take charge, to not order people around, but to get involved in the process and make sure that it’s not getting off the rails and ask, why do you need this discover? Why are we doing this? What are we getting at? Why don’t you just give it to ’em and try to work it out that way?

Rocky Dhir:

Do you feel that judges maybe need to get a little bit tougher on misconduct or the usual gamesmanship that goes on in a lot of these cases? Do you think judges should just get tougher about it and say, look, you guys need to produce or you guys need to back off or whatever?

Chief Justice Nathan L. Hecht:

When I was on the trial bench, I never found that work very well. I always found that it was better to say, it seems like we should do this. If that’s not right, somebody tell me. And if you’re not agreeing to this kind of program, to this plan, to this schedule just because you don’t want to, then I’m not sure that litigation’s going to go well for you. People can tell you’re not trying to get to a constructive result, and most of the time, in fact, I don’t remember a case when it didn’t happen. The lawyer can see that. I mean, he’s got to represent his client. He’s argue his points. He’s got to do what he’s got to do, but if he’s just reper, it’s not going to go well for him.

Rocky Dhir:

One of the questions I want to talk about Chief is what we as lawyers can do to improve ourselves and become better. But before we do that, let’s hear from another one of our sponsors. We’re going to be back in just a couple of minutes, so everybody stay tuned. And chief, while we’re out, I want you to think about the best and worst things lawyers have done so that we can share your knowledge with all of us and we can all become better for it. So guys, stay tuned. We’re going to hear from one of our sponsors. We’ll be right back. And we are back with Chief Justice Nathan Hecht. While we’re on a break, I had a quick question that I thought maybe we hadn’t covered yet, but as past president of the National Conference of Chief Justices, that’s a role you held. What does that group do?

Chief Justice Nathan L. Hecht:

The group was created 75, 70, 75 years ago. Then the National Center for State Courts was created 50 years ago, so the chiefs had kind of met together. So the purpose of the conference is for the highest level judge in every state, the District of Columbia in the five territories. So there’s 58 of us because Texas and Oklahoma have two, because we each have a separate criminal high court. The idea is basically to anticipate address problems that are affecting the justice system, come up with ways to make them better, and then help states implement ’em. And this can’t be done nationally because the states are too different. But the National Center and the Chiefs can gather best practices, data, ideas, resources, sometimes funding to try to help states address an issue in their own way so they don’t have to reinvent the wheel. So an easy one is drug courts.

Now, drug courts are throughout the country, but when they first came online, how do you do a drug court? What does a judge do? How do you set up the docket? Veterans court, same thing. And then there are lots of other practices like the National Center has worked a lot on bail fines and fees in misdemeanor cases, on opioid cases, on mental health, in the legal profession and in the justice system. All these issues that come up and Texas should be interested in how another state is handling this. If they’ve had success and if they stub their toe, it’s good to know that and try to avoid it. So I was president of the conference during the first part of Zoom in 20 and 21. I spent 40 or 50 hours a week doing nothing but talking to my colleagues around the country about how they were handling the challenges. And I think if we hadn’t had that, it would’ve been a catastrophe. And as it happened with judges working together, states working together, the judiciary performed pretty well during that period of time

Rocky Dhir:

Except for Covid. Do you guys meet in person?

Chief Justice Nathan L. Hecht:

We meet twice a year in person. There are lengthy educational segments. They look at all kinds of issues. We’re looking at issues right now intensely about how do you encourage people to go to law school? How do they get into law school? Do they have to take the lsat? What kind of courses and training should they get? Should it be more clinical? Should there not be long? Should it last? And then how do you get licensed to practice? Does everybody take theBar? Can some lawyers be allowed to practice without taking theBar? Say for example, in legal aid clinics, just everything from start to finish. And theBar has a huge say in how all this works. The deans, the academy has a huge say, but the courts, the chiefs, and the Supreme Courts are the licens. They’re the people that hand you the ticket. And so we’re trying to get everybody together and look at all these issues and see if we should change.

And again, the idea is not to force something on everybody nationally. California’s going to do this different no matter what. They’ve already got a lot of law schools that the rest of the country doesn’t have. Florida’s going to do it differently. You got to take the Florida bar to be a Florida lawyer. Delaware’s going to do it differently because of all their business cases, but they will know is the LSAT working? Are we not getting through to people with different backgrounds that they could go to law school, they could be a lawyer. Is it not on their radar? Can we help

Rocky Dhir:

Raising the awareness?

Chief Justice Nathan L. Hecht:

Yeah, maybe even in high school, but certainly in college, I didn’t know I was going to be a lawyer. I went to college to be an engineer if it hadn’t been for several people in my life. But friends, family that said, no, no, you should think about that could have ended up differently.

Rocky Dhir:

I also wonder, looking back now, we’d promised this question and I hope you’ve given it some thought. What are the qualities, as you look back over time, of the best lawyers who’ve ever appeared before you and the worst lawyers who’ve ever appeared before you, what are the do’s and don’ts of effective lawyering in your view?

Chief Justice Nathan L. Hecht:

The best lawyers are always prepared. They’re always thinking about what they’re about. They’re always anticipating ways to advance their positions, their client’s positions. Best lawyers had a trait that I think is missing in society right now that was persuasion. They thought to themselves, if I could just find a way, if I could just think about this enough, I could convince this juror. I could convince this judge that this position is correct. They should think this is right. And nowadays, we’re so antagonistic toward each other and no, we’re not. Exactly. We’re just yelling all the time. And the best lawyers always wanted to win, not to fight. They thought fighting was a waste of time and a distraction, destructive to the position. And the far better course was to figure out a way to win. And the worst lawyers did the opposite. They thought if you were in a dustup all the time and flailing around that, that was somehow another advancing things in your favor when it just wasn’t. My friend, Joe Jame was so good at that. I mean, he was just such a great trial lawyer because he had such an idea about the common person, and he could hone in on that and convince people. There’s a lot of them. A lot of appellate lawyers too are very good. But I think that’s the big difference.

Rocky Dhir:

So one final question, chief, before we wrap up. Thinking now about young lawyers and law students, what advice would you give them? What are the keys to doing what you did to building a storied legal career that you can look back on and be proud of? What would you want them to know?

Chief Justice Nathan L. Hecht:

What I hear from young lawyers, I have law clerks every year that are going to go into the practice, into the profession. So I get a pretty steady trail of people coming through the court and following their careers and remaining friends with them. One thing that they seem to struggle with is what they find to be oppressive in the current practice of law, the number of hours, the stress, the difficulties, and the standard answer for why did you go to law school is to make a difference. That’s what everybody says. And then you get out there and you feel like you’re not making a difference. But there are a lot of ways to do that. And these days there are a lot of pressures to keep you from finding them, but you just need to. So the easiest way is just to get involved in theBar, get involved in bar activities and bar sections, working to help access to justice, working to help with issues that come up in the court system that are a different dimension, if you will, to the discovery work that you’re going to be doing and all the hours you’re going to be putting in.

So I think the new lawyers need to know that there really is a great life in theBar. As Oliver Wendell Holmes said, you can live greatly in the law. You don’t have to be a football star or an opera singer to be great. You can be great in the law, but you have to seek it out. It’s probably not going to be handed to you. I hope young lawyers will see that the profession needs them just as much as it always has, that they have huge contributions to make that it’s going to take a lot of work and patience. But they should be encouraged to do it

Rocky Dhir:

Well. So get more involved to the State Bar of Texas, I promise. Disclaimer, we did not pay the chief justice to give us that plug. Okay. That was him. That was all him. But Chief Justice Nathan L. Hecht, thank you so much for being with us here today, and congratulations on just, it’s an indescribable career, and thank you, of course, for all your service all these decades.

Chief Justice Nathan L. Hecht:

Thanks, Rocky. Thanks very much.

Rocky Dhir:

Absolutely. And I want to thank you for tuning in. Hope you’ve enjoyed this content. I know I have, and I want to encourage you to stay safe and be well. If you like what you heard today, please rate and review us wherever you get your podcasts. Until next time, remember, likes a journey, folks. I’m Rocky Dhir signing off.

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