Texas’ Longest-Serving Supreme Court Justice Nathan Hecht on Improving Access to Justice and the Courts

Episode Notes

Transcript

Chief Justice Hecht:

You couldn’t come away from that without thinking to yourself. I don’t want to spend my years working as a judge over a justice system that doing anything but justice,

Announcer:

Equal access to justice is a core American value. In each episode of Talk Justice an An LSC Podcast, we’ll explore ways to expand access to justice and illustrate why it is important to the legal community, business government, and the General Public Talk. Justice is sponsored by the Leaders Council of the Legal Services Corporation.

Ronald S. Flagg:

Hello and welcome to Talk Justice. I’m Ron Flagg, president of LSC and your host for this episode. Our guest today is the Honorable Nathan Hecht. He was the 27th Chief Justice of the Texas Supreme Court and just recently retired from the bench at the end of 2024. He was first elected to the Texas Supreme Court in 1988 and was continually reelected to his position until Governor Rick Perry appointed him to be Chief Justice in 2013, and he was twice reelected to that position as Chief Justice in Texas. Chief Justice Hecht’s remarkable tenure, makes him the longest serving member of the Texas Supreme Court. During his tenure on the Supreme Court, he spearheaded big improvements to court efficiency and transparency, and continues to be a leader in promoting access to justice in Texas and across the nation. He is a member of the American Academy of Arts and Sciences and served as president of the National Conference of Chief Justices. We at LSC are profoundly grateful for Chief Justice. Hecht’s leadership and advocacy in addressing the justice gap and his support of civil legal aid. One of the greatest honors of my career was testifying last year with Chief Justice Hecht before the United States Senate Judiciary Committee on the justice gap in America and the paths forward to address it. Chief, thank you for being here and being here for access to Justice for decades now.

Chief Justice Hecht:

Thanks, Ron. Always good to be with you.

Ronald S. Flagg:

I know you didn’t originally set out to go to law school and become a lawyer, let alone a judge. How did you end up on this path?

Chief Justice Hecht:

Well, it was a kind of a circuitous route. I grew up on a grain farm, small grain farm in Eastern New Mexico. My dad was a farmer and there were no lawyers in our family. We had a little case every once in a while, usually had to do with farming and Papa would always make sure that I knew the details and followed it along because he was very proud of the justice system and he wanted me to understand that and to share that. But that was it. I did well in math in high school and I thought I was going to be an engineer, but I got to college and turned out I liked math more than it liked me. So after the first semester, I began casting around for a different course, a lawyer back at home who had helped us here and there on little cases said, well, you ought to be a lawyer.

So I said, well, I never had thought about it, but I changed my major to philosophy and graduated with that degree and then just headed straight to law school and I took to it pretty well and graduated, went into practice, clerked for a federal circuit judge when I got out of law school and he and I 50 years older than I was, but we were close and he said, you ever want to be a judge? And I said, well, judge, I don’t know, maybe. And he said, well, let me just tell you my advice is don’t go looking for it. Just work real hard and do good and it’ll find you. So that’s what I did. And I just made partner at the law firm doing litigation, a little bit of appellate work, and I told one of my partners at the firm that I might want to be a judge someday, but in Texas we elect judges on partisan ballots, which I don’t think is a good way to do it, but the people of Texas disagree with me.

And so I didn’t know anything about that. I didn’t know the first thing about running for office, I was just minding my own business. And the partner that I had talked to about it called me late one night, said, you still want to be at Judge? I said, John, it’s the middle of the night. He said, well, you’re not going to change your mind in the morning, are you? And I said, well, no. He said, well, we’ll go talk to the governor’s lawyer on Monday and see what he says. And by Wednesday I was a district judge in Texas, so there wasn’t a lot of planning. Judge Rob was right, as long as you had a good reputation and worked hard. When the time came, the opportunity was there.

Ronald S. Flagg:

Well, that’s a remarkable story. One question. You obviously at some point in your career switched from being a trial judge to being an appellate judge. What did you think of that transition?

Chief Justice Hecht:

Again, that was sort of happenstance. I enjoyed being a trial judge, but there was a vacancy on that was in Dallas. There was a vacancy on the court of appeals in Dallas. We have regional courts of appeals in Texas. And so again, the people that were involved in making that decision wanted me to run for an open seat on the court of appeals, and I thought it would be a good opportunity. And when I got to the end of that, it was just a two year stat because it was part of an expired term and got to the end of that. And a friend of mine wanted to run for the Supreme Court of Texas, and I thought it was a long shot at the time, I was just 39 years old and I really didn’t think either one of us had much of a chance, but I thought, well, I’ve seen the judge side of it now and I like practice and maybe the worst thing that can happen to me is I lose and then I’ll go back into practice and lo and behold, hold one.

And it’s been great. Of course, the appellate bench is very different from the trial bench. Trial bench is where all the excitement is and you’re always trying to help cases move along on the appellate bench, you’re sitting back in a corner with the door closed reading briefs and writing and trying to research the law, but it’s very different. And then of course, the other thing on the appellate court is you got to work with other people. And I don’t think the public appreciates, I’m not sure theBar fully appreciates how much judges have to work with each other on appeals courts just to get their jobs done.

Ronald S. Flagg:

So a lot of judges I’ve talked to over the years have lamented or commented on the fact that they don’t get to choose their cases. They may in the appellate courts have a C jurisdiction. So within a universe of cases that are presented to you, you can make some choices, but by and large, the issues and the people that are appearing before you don’t have control over what those issues are, who they are. But there was one aspect of your career and issues that you dealt with that there I think was a great deal of intentionality and forethought, and that was on really advancing and advocating for access to justice and addressing the justice gap. And you didn’t have to do that. You would’ve had to deal with those as they presented themselves to you as a judge. But how did those become priorities? How did advancing access to justice and addressing the justice gap become important to you?

Chief Justice Hecht:

When I first went on the trial badge, we didn’t have a lot of pro se litigation. I was a civil district judge. We had 36 judges in Dallas County, civil, criminal, family, and juvenile, and I was civil. And if I got a pro se litigant once a month, I thought I’d done something to offend Providence and they were taking it out on me because it’s just so difficult to deal with a pro se litigant. But as time passed, even back in the eighties when I was a trial judge, there were more and more pro se. By the time I got to the Supreme Court, it was already an issue. IOTA was a new thing. It was new in Texas, it was being litigated. The Supreme Court before I got there had already pushed several initiatives to improve access to the justice for the poor in Texas.

So it was already a priority at the Texas Supreme Court. And then after I got there, it continued to grow through the nineties and toward the end of the nineties, our court conducted a hearing, an all day hearing on the state of access to justice in Texas and the country. And of course it was deplorable, but we were hearing all of this kind of in a concentrated version, and it was true of me, but it was true of my whole court. You couldn’t come away from that without thinking to yourself, I don’t want to spend my years working as a judge over a justice system that’s doing anything but justice. So we were all working together on it. Then on our court, we divide up administrative responsibility so that some judges in charge of oversight of the state bar and some over other aspects of the profession, and one of those is access to justice in our access to justice commission.

And so the justice who had been doing that was leaving the court, and I was the senior justice at the time, and the chief said he wanted me to do it because he wanted to signal to everybody that this was a real priority for our court, which it had always been, but it was a good signal. And so I became immersed in that and at the very outset wanted to be sure that we built a strong, a nonpolitical apolitical foundation for this as we could because the history of LSC that had some politics in it, so we wanted to make sure that was true, and we wanted to get as much state support as we could. So those became my mission and I was honored to be able to work on it.

Ronald S. Flagg:

A couple of follow up questions. You mentioned the need for access to justice and public support for access to justice, to be nonpolitical. We talk about it as it should be bipartisan or for that matter, could you comment on that?

Chief Justice Hecht:

Yeah. Sergeant Shriver pushed LSC back in the Johnson administration. Senator Kenny was pushing on Ed. There was back and forth. Finally, president Nixon signed the bill a couple days before he left office, and right away there was some antipathy toward LSC in the Reagan administration. And it kind of went back and forth over the years, but it was enough that there could be a kind of tone about legal aid. It’s just another entitlement. Legal services is just a program and lose sight of the fact that it was about actually doing justice for these people and courtrooms and other places where people went to receive the promise of the rule of law. So when I started working in the Congress and in the legislature pretty hard on it in the mid aughts, the Republicans in the House of Representatives would pretty much every session vote to do away with LSC, and they never really got any traction.

It never really went anywhere, but it just was something that shouldn’t be, it just shouldn’t be. And the truth of the matter was if you looked at it evenly and reasonably, everybody should support it because again, it’s about the promise of law. So I want to be sure that we were doing that in the Congress because it would help us hold and improve the funding. But also in Texas, because Texas, as you may have heard, is a fairly conservative state, and I didn’t want legal services to be thought of in less than ardent terms among conservatives. And I’ll say that over the years that we’ve worked on it, there is very strong support in our state on the right for access to justice, and that just helps people focus on what we’re really about. One of the biggest problems with access to justice is nobody knows what it means when they hear about the real lives that are affected. They just don’t have a clue that that’s really happening out there. So it’s a good way of bringing it home and making policymakers feel good about the effort that’s being put into access to justice.

Ronald S. Flagg:

So access to justice, certainly we can understand it from the standpoint of individual litigants. We’ve all seen data, whether it’s in eviction cases or domestic violence cases or debt cases that if you’re represented by a lawyer, you win 90% of the time and if you’re not represented, you lose 90% of the time or data to that effect. And so whether you win or lose is purely a function or largely a function of whether you have the financial means to hire a lawyer. So fairness in that in terms of individual litigants is fairly apparent, but what about from the standpoint of the system itself, the operations of the courts, how does access to justice affect the operations of the court beyond the outcome of individual cases?

Chief Justice Hecht:

Well, it has become a huge issue. The best numbers I’ve seen in the last few months are that state courts in the United States, about 30,000 state court judges. We don’t know exactly how many, decided about 69 million cases last year. In 2023, about 20 million were civil cases, and in 75% of the cases, one party or both was not represented by a lawyer. So as you put the personal touch on it, you can think of this somewhat like medicine. If you’re a patient, do you want to be treated? Do you want to be operated on by just somebody off the street? Do you want to try and do it yourself? Don’t you want the best doctor in the world taking care of your health because it’s crucial? Well, law is similar in that respect, in that it’s an expertise. The practice of it is a profession, and so you’re always going to be better off if you have the assistance of a lawyer.

But from the structural side of it, it’s just very difficult for courts to function without the assistance of lawyers in the Courtroom, handling the papers, filing the papers, getting people to hearings, getting the case presented, when the judge has to wait on lay people to do all of that, who understandably just don’t know the system, then dockets are bogged down, backlogs grow, the system begins not to function as well as it should. And then these days dockets, civil dockets in the United States have differentiated a lot. So it’s not just a civil case in the sense that it’s a case that you’re not going to go to jail. It’s a civil case, but an eviction case or a debt collection case or a child support case or a car wreck or all these various different kinds of scenarios, and they all have to be handled differently.

The last thing in the world a judge wants is to have a Courtroom full of people who are worrying about eviction cases and multimillion dollar oil and gas disagreements. I mean, you want a better management than that. So access to Justice has forced systemic change on the courts, which is a good thing that made us think about how we can better handle our business and do a better job and make sure that people on both ends. If you are in the multi gillion dollar case that the court is working for you, that if you’re in a very small eviction case, the court is working for you, it’s in the process of making a lot of those changes.

Ronald S. Flagg:

So given your tenure as Chief Justice, you obviously have had an opportunity to be a part of the National Conference of Chief Justices, and you served as president during the pandemic, which was I think a good thing for the pandemic was not a good thing for access to justice, but some of the reforms that it yielded were, and having you as president of the conference, I think was very helpful to a lot of those changes. Could you talk a little bit about the National Conference of Chief Justices and its role in working on access to justice, including changes that occurred as a result of the pandemic? So

Chief Justice Hecht:

The states don’t have any way of communicating with each other on kind of functional policy issues. That’s natural. There aren’t any embassies or anything like that. So you have to come up with ways that Texas can understand what Idaho is doing and what Connecticut is doing and what Arkansas is doing, and we can learn from each other and not all reinvent the wheel. So 75 years ago, the conference of Chief Justices was created s size ranking judge in each of the 50 states, the District of Columbia and the five territories. And we meet together nowadays at least twice a year and sometimes more often to talk about all kinds of court administration functioning kinds of issues like specialty courts in the criminal system, drug courts, veterans courts, mental health courts, opioid courts or pretrial release or mental health generally in both the civil and the criminal system, all these kinds of issues that courts are dealing with across the country need to be discussed and shared by the chiefs so that they can go back home and encourage policymakers in their states to take one step or another to try to get there.

So the conference, as I say, he’s been there 75 years, chief Justice Berger back in the late seventies, mid seventies thought that there should be even more. And so he helped create the National Center for State Courts, which serves as a sponsor for the conference of Chief Justice’s CCJ. And then there’s another conference, a national conference of state court administrators, again, the highest ranking, one from each state. So they’re pretty small groups and they’re pretty intense and everybody knows everybody, and it’s just indispensable to meet together and talk about these issues. So you mentioned Covid. We declared an emergency on Friday the 13th in March, 2020. And the next Monday, the chief judge in another state called me to say, what are you going to do about filing papers? Because courthouses were going to be closed, clerk’s office weren’t going to be open, and people were worried about even handling paper, even carrying it around might cause exposure to the disease.

And I said, well, in Texas we don’t have a problem because we have e-filing in all of our courts, and so people can stay home and push a button and it’ll get filed. But we were all learning together how are we going to cope with this remote proceedings? That same Monday, our court administrator in Texas called me and said, I’ve got Zoom licenses for everybody, and I never heard of a Zoom license, I never used it. I thought Zoom meant to hurry up, and I just didn’t have any idea what he was talking about. And within a day or so, the 3,200 judges in Texas had Zoom licenses and could begin to set remote hearings, which we’d never done before, and learn how to do that. And so fast forward, as you say, COVID certainly wasn’t good for the country, but it did force the justice system and the legal profession to kind of look at some of its practicalities, the way it does things and see if there were other ways to do it.

So now we’re three or four years past all of that coming up on five, I guess. And so now we’re in very kind of high level discussions. Does Zoom work in this? Does Zoom work in that? Can you try a case to a jury by Zoom? We’ve done that. We tried the first one in Texas. Does it work? Not very often, but in a misdemeanor case that usually takes two hours to try and the jury comes back with a verdict by noon, jurors love it. They don’t have to go to the courthouse in a more consequential case with more protracted, no, it’s not going to work. The same way with hearings. We found out from the family judges shortly after Covid hit and we were doing remote proceedings that the participation rate in family cases went up 75% because participants could zoom in. They didn’t have to leave work, they didn’t have to leave home, they’d have to drive downtown. They never go park the car, sit around the courthouse all day, get daycare take off from work. And it wasn’t that they weren’t going to court because they didn’t care, it’s just that it was impossible. So it’s helped us kind of step back and take a look at some of our practices and see if we can’t find better ways going forward.

Ronald S. Flagg:

So you said before, one of the biggest challenges the justice system, civil legal aid face is that people don’t know what access to justice is. People don’t know what civil justice problems are as compared to criminal problems. People don’t know what legal aid is. You once yourself made an analogy that I think may be useful from an advocacy standpoint. You said quote, if justice were food, too many people would be starving. And obviously this statement evokes so much. It gets us thinking about justice as a basic human need, just like a lack of food begets starvation, a lack of justice leads to real tangible harm to people. In talking both to state legislators and Texas and federal legislators here in Washington who are deciding what public services to fund, what have you found to be the effective means to communicate the seriousness of civil legal problems and the benefits to really investing in access to justice and civil legal aid?

Chief Justice Hecht:

Well, abstraction and ignorance are our two principal adversaries in trying to advance access to justice abstraction because access to justice just doesn’t sound like a big deal, it sounds like. I don’t even know what that means. You tell a lay person, somebody you’re sitting with at a high school football game, what do you think about access to justice? They’re going to look at you so people don’t understand what it means. And then the second problem is ignorance. There’s lots of facts out there, but everybody’s busy and they’re not going to go take the time to research something. They need help understanding it. So the best thing I’ve found in dealing with policymakers is you’ve got to put a face on it. You’ve got to help people see in real terms what is happening and why legal aid, legal assistance is so important. So you pick very sympathetic cases.

Take for example, veterans. When I went to the Texas legislator legislature several years ago and asked for access for legal aid funding for veterans, the initial reaction was very positive because these days we’re very mindful of the service that veterans render us and we’re respectful of that. But then when you get one step past that, you say, well, what does that mean? And then you can begin to tell stories. The veteran comes home, he goes to his house, his family is distant, now he’s been gone, he’s having trouble finding work. All kinds of problems of the world he was trying to protect are now coming down on his head. And you can put a face and lots of names on that situation and say, well, this is this fellow. Every year we have events where we feature people who have had particularly moving stories, and that really helps motivate people to see, okay, I get that.

This is something important. I was at, I think it was an LSC sponsored event several years ago in Florida and had people from all over coming, but one of the men who was helping sponsor and make sure the event happened was a very, very successful and powerful to use the word business person businessman and very savvy dealing with lots of investments, lots of money, lots of difficult issues. And he was standing in the back of the room as the people on a panel were talking about John and Mary and Sally and Susie and Fred having these problems. And he turned to me and he said, I just had no idea that that’s what was happening. Well, of course not. He lives 50 miles above all of that. It’s not his fault. It’s just incumbent upon us to do a better job of saying, this is a reality.

And here’s the thing. When it goes on, when the veteran is turned away, when his family collapses and he doesn’t have the means to get to court, to get custody of his kids or at least visitation or when he can’t get through the employment process or all of the intricacies of life that a lot of us take for granted and are just mountains to climb for them when they don’t get there, when all they meet is frustration, then they say quite rightly, well, the justice system is not what it’s cracked up to be. And as more and more people say that, then you begin to undermine the public confidence in the rule of law and the institution of courts and the justice system and the whole thing, and you just can’t let that happen. Again, to use the grocery analogy, if enough people walk into a grocery store and come out with food that makes ’em sick, they’re going to quit going to that store and it doesn’t take very many of them, maybe just two, and they say, I’m not going in there. And so the same thing can with the legal system, and it has been happening in my view. And so that’s why it’s so critical to make sure that the justice system is more user-friendly. The lawyers aren’t good at that, lawyers do it their way. That’s the way the profession is. But we have to take into account the realities that people face when they are trying to get what they would’ve been promised since grade school, that there’s a justice system out there somewhere and they can benefit from it.

Ronald S. Flagg:

Well, I think your reference to veterans is a good one because if you ask the average person, even the average veteran, what help could a legal aid lawyer be to you? A lot of people, and even veterans might not be able to answer that. And in the same way, if you ask the average person, can legal aid be of help to people in recovery from opioid use disorder or people recovering from natural disasters, you don’t think of calling a legal aid lawyer as your first call. You probably need a doctor or a health provider or a builder to help you rebuild your home. But it turns out that legal aid can play an enormous role in helping people recover from opioid use disorder and helping people recover from natural disasters. But that’s not obvious. And it’s a story that has to be told, and it has to be told in human terms, putting a human face on the people who are facing those challenges and either getting help or not getting help depending on whether legal aid is available. Let me ask you one last question. In your time on the bench, you’ve seen a lot of change in the courts. What recent developments excite you most for the future of the courts and for the future of delivering justice?

Chief Justice Hecht:

I think more open right this minute to considering changes in the way the justice system works, the courts function, the profession. And we haven’t been, so we could have done Zoom hearings 25 years ago, 30 years ago when I was on the district court 40 years ago. People wanted to do telephone hearings and depositions every once in a while. Nobody did them, people didn’t like and we didn’t do them. So now there’s kind of an acceptance to try different things. Secondly, one thing that’s exciting is that the court system, the justice system over the years has been kind of a one size fits all. It’s like the federal rules of civil procedure. This is the way you do it, and if you’ve got a zillion dollar case, it’ll work great. And if you’ve got a $2 case, well, those are the rules. And now we’re beginning to see that the differentiation in dockets can really do a better job of delivering justice to the people who need it, and it cuts across everything we’re doing.

So in the civil system, differentiating dockets on the basis of size and complexity is a big help on the criminal side, differentiating on the basis of the special circumstances of criminal defendants. If you’re an opioid user and criminal and you get arrested and a criminal judge diverts you into a recovery program, there’s a very good chance that it will be successful, that it’ll be good for you. If a criminal judge does not divert you into that program, there’s a very good chance that you’re not going to have a good recovery or a good life. It’s just very, very serious. And so the idea that we can diversify and get better results is very beneficial and it’s exciting. The American Law Institute, which is a national group of lawyers and judges and law professors who think about all these things is working on a huge project right now to try to further differentiate the way the system works for the people who are in it.

So how you give notice, how you set hearings when people have to come, where they have to go to, all of these kinds of things are on the table, and it’s exciting to think that we’re moving toward a better system that’ll work better, that everybody will like more, that we’ll do a better job. And if you look around the world right now, the whole world went through covid, but I think at least from what I can see, that that experience is having a more profound effect on the American justice system than the justice systems in a lot of other countries, which are just kind of reverted back to what they were doing before it hit. So those things are exciting. And we hadn’t talked about ai, but this is not farfetched. You and I are sitting here having this conversation. One of the problems with access to justice legal aid is intake.

It’s getting the person who needs help to a place where that person can express the need for help and have somebody try to understand it and delve into it and then figure out a path forward. What is really needed? Well, traditionally, one-on-one and every lawyer that spends an hour counseling one client and needs legal aid, that’s it. When the hours run out, that’s the end of it. But you can sit down these days today, right the second and do what we’re doing, and the computer screen will ask you, what do you think your problem is? And you can tell it just in your own language, and AI can try to sort that out and ask you further questions and then try make a reference to a lawyer of that case and maybe several others that can be treated more efficiently. So it’s not the robot taking over the lawyer’s job, it’s not the client talking to a robot, but it is a way of trying to gather information and insight that’s going to be helpful. And you know what? My guess is? If you sit down in front of a computer screen and a robotic type AI person on the other side starts asking you questions and taking your answers and getting you help, I don’t think you’re going to care that it’s AI or that it’s Sam Jones the lawyer. I think you’re going to think, thank goodness I got help.

Ronald S. Flagg:

And what if instead of Sam Jones, the lawyer or a robot, you get a community justice worker or a paraprofessional. I know that’s a innovation that has sprung up in a number of states, Alaska, Arizona, Utah, and Texas has been considering that as well. What are your thoughts on that?

Chief Justice Hecht:

Again, it’s just way to get more help to more people. So becoming a lawyer is hard. You got to go to school, you got to pass theBar, you got to be licensed. And so there are fewer lawyers than we need, especially for legal aid work and rural communities and lots of other people. But if you can get somebody who is not quite a lawyer, they didn’t get the degree, but they’ve been working in the legal area for a long time and they know how it works. And there are a lot of common things in eviction cases and debt collection and child cases and employment cases that happen all the time if they can help. Again, that just spreads the legal experience and talent over more people, which is one of the big problems legal aid has right now is just attracting enough lawyers to do it.

But those paraprofessionals, others that kind help at the courthouse. And then another issue that’s looming out there and people are beginning to talk about more is what responsibility does a judge have to see that a case is being handled appropriately? Typically, all the years I’ve been a judge, it’s hands off. The judge sits there and people do their best. And when they get done the judge rules and to help someone who doesn’t have a very good lawyer or no lawyer at all, it’s just completely out of bounds. But the system is looking back and saying, wait a minute, why should that be the case? Why should the people who are in charge of the gate be turning away? People that they know can’t use the system by themselves. So those are very hard issues, and we will have to take a very hard look to see what kind of assistance can the system provide and still not take sides and be fair.

Ronald S. Flagg:

Well, chief justice, Hecht, there is nobody in America who is better at thinking about those hard issues than you are. It has been a real honor to work alongside you to continue to work alongside you on these critical issues. Thanks for joining me today to share your insights and for all your work in this area now for decades. Thanks to our listeners for tuning in to this episode of Talk Justice. Please subscribe so you don’t miss an episode. Stay Well.

Announcer:

Podcast guest speakers views, thoughts and opinions are solely their own and do not necessarily represent the legal services corporation’s views, thoughts, or opinions. The information and guidance discussed in this podcast are provided for informational purposes only, and should not be construed as legal advice. You should not make decision based on this podcast content without seeking legal or other professional advice.