Episode 26: Justice Jane Bland
Serving Justice on the Texas Supreme Court
00:57:37
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Show Notes
Our guest today is Jane Bland, a Justice on the Texas Supreme Court. Learn how Justice Bland got into law and moved from BigLaw practice to the bench. Discover what it takes to be elected to the bench, and serve the community in a myriad of ways. (And for you litigators, hear some tips on succeeding as an advocate in court.)
Relevant episode links:
Justice Jane Bland, Baker Botts, Vinson & Elkins, Noise
About Justice Jane Bland:
Justice Jane Bland
Justice Jane Bland was appointed to the Supreme Court of Texas in 2019 by Governor Greg Abbott and elected in 2020. Before her appointment, she served for six years as a state district judge in Houston and for 15 years as a justice on the First Court of Appeals. Justice Bland serves as the Court’s liaison to the Judicial Commission on Mental Health, the Texas Board of Legal Specialization, and the Texas Supreme Court Historical Society. She is the deputy liaison to the Court’s Rules Advisory Committee. Justice Bland earned her undergraduate and law degrees at the University of Texas, graduating with high honors. While in law school, she was Vice-Chancellor and an editor on the Texas Law Review.
Following law school, Justice Bland clerked for the Honorable Thomas Gibbs Gee on the United States Court of Appeals for the Fifth Circuit. She began her practice at Baker Botts, where she handled trial and appellate matters. Before her appointment to the Court, she was a partner at Vinson & Elkins in Houston. She is board certified in civil appellate law and civil trial law by the Texas Board of Legal Specialization. Throughout her career, Justice Bland has been recognized for her work to improve our state’s judiciary. In 2010, Chief Justice John Roberts presented her with the William H. Rehnquist Award, given to a state court judge who exemplifies the highest level of judicial excellence, integrity, fairness, and professional ethics.
She was named Appellate Judge of the Year in 2007 and 2015 and Trial Judge of the Year in 2003 by the Texas Association of Civil Trial and Appellate Specialists. She has chaired the board of Houston Volunteer Lawyers and the Oversight Committee for the Texas Pattern Jury Charges. She is a member of the American Law Institute.
Transcript
I'm happy to welcome to the show, Justice Jane Bland from the Texas Supreme Court. Welcome.
I'm so happy to be here.
I wanted to start with a little bit of your background in terms of what inspired you to join the legal profession or to think that you want to be a lawyer or to study law, to begin with.
It was one of these things where it matched up with the things I like to do in life, talk, debate and be out there. Long ago, my father inspired me. When I was in elementary school, the boys would be making fun of me saying, “You're loud. You talk too much like Howard Cosell,” a famous Monday Night Football broadcaster at the time. I came home and said, “Dad, they're calling me Howard Cosell and it's not a compliment.” He said, “Howard Cosell was a lawyer once upon a time before he got into Monday Night Football. Maybe you'd be a good lawyer.”
My family didn't have any lawyers but something stuck in my head. I started getting involved in speech, debate and those kinds of things. It was a good channel. I also learned to try to listen more. In some ways, teasing is not always such a bad thing. They say today that bullying is terrible and it can be. If you feel that you've done that with someone, then you have to self-examine and say, “Why did I do that? It's terrible to be mean to another person.” If you're the recipient of that, sometimes it can make you become a little self-aware. Probably, they did me a big favor in the third grade when they called me that.
It's interesting how your father turned it into, “Let’s see. What else did Howard Cosell do? He was a lawyer before that.” That's a deft move by your father to switch it to a positive and productive thing, “You have traits. Let’s put it to a positive. We’ll channel it for good.”
He had three daughters. We are all social and chatty as women and he himself is quiet. What he said was always spot on and wise, so I’m lucky to have had him in my life. My mother too. He didn't know quite what to make of us, but he was accepting of who we were. He never tried to make us into someone that we weren't. That's such a great thing to have in a parent.
Getting teased is not always such a bad thing. Sometimes, it can make you a little more self-aware.
For women and girls, it's helpful to have a father who is that way, who wants you to become the best that you can, and can see the possibilities for that, and doesn't limit you in that regard. That's so important. I also have a father who's quiet and otherwise, doesn't contribute. When he walks through the room with his one comment, it's always spot on, helpful, kind and supportive. It's nice to have that.
It's great modeling. Now that I'm a parent, my children are grown, and we have adult relationships, back on my parents and how they modeled for me what it should be like, I'm lucky in that respect. Not everybody's lucky with who their parents are.
You didn't consider becoming a sports broadcaster though.
No, I didn't. I got involved in speech and debate, which was a perfect way to learn how to argue. I did extemporaneous speaking, which was this little competition where you had about half an hour to prepare for a current event, and then talk about it and you debate. You had a particular topic every year that you were either the affirmative or the negative on. I had no idea that that was training me to be a lawyer. It was just a club that fit well. I was not an athlete. I was tiny and not good at sports. It was something that I could get involved in and enjoy. It turned out that was good training for being a lawyer.
A lot of lawyers, especially litigators, have some debate experience in their background. I know you were in private practice for some time before joining the bench. I'm assuming you were a litigator.
I clerked on the Fifth Circuit for a federal judge for a year after law school, and then after that clerkship, I was one of his last group of clerks. He retired and we both joined the same firm, Baker Botts, in Houston.
How did the clerkship impact your training and your perspective as a lawyer?
I ended up being an Accounting major in undergrad. I got a Business degree. I was thinking more that I would be a tax lawyer or some kind of business transactional lawyer. In law school, someone said, “You would enjoy clerking. You ought to try it.” I'm grateful because a piece of off-the-cuff advice in the hallway changed the trajectory completely. I said, “I'll give it a shot.”
I didn't know what it was about, but I gave it a shot and ended up clerking for Tom Gee on the Fifth Circuit. That made me think, “I'm not going to be a tax lawyer. I'm going to be a trial lawyer.” When he and I were both exiting, I had clerked at Baker Botts and he had had relationships through the years with lawyers there. We decided together that we would go there. It was terrific because I got to continue to work with him. He ended up sadly getting Lou Gehrig's and he practiced almost until he died so I was fortunate.
In my clerkships, you have these lifelong friendships and mentorships with the judges you've worked with. The actual working time is limited to those 1 or 2 years, but you have the benefit of continuing that on, which is neat.
A successful judiciary follows the rule of law and resolves disputes.
It was a comfort to him and me. He had not been back. He was a fabulous lawyer and had been a wonderful trial lawyer and enjoyed it. He didn't go to the bench because he didn't like being a lawyer. After twenty years on the bench, it was all new to him too. To go back together was a comfort because we had each other. We knew each other well by that point. It was great. I got to continue to learn all the wonderful things that you learn when you're a clerk.
Relatively, you weren't in practice long before you joined the bench.
I wasn't. I didn't think about becoming a judge. I liked being a lawyer. I almost liked it too much. I met my husband once I started practicing at Baker Botts. We got married and we had our first child. He was at a big law firm and I was at a big law firm, and we're both enjoying the practice. One day, one of the partners of Baker Botts, I was putting up for a deposition. He was a resource witness in a case, so it was easy.
In our break, he turned to me and said, “Jane, Governor Bush is looking for people to go on the state court trial bench. He would like people who would spend their career on the bench.” He was in his 50s at the time. “He knows that people my age are priced out of the market. We can't get them to leave their lucrative practices. You know a lot of young people, so if you don't mind spreading the word and letting people know.”
At the time, my husband was an energy transaction lawyer and he was in Kazakhstan or somewhere. This was 1997. Conventional wisdom then was that by the year 2020, we would be completely out of energy in the United States. There would be no domestic production of oil and gas. I always think about that when people tell me that something that exists today is going to look exactly like it does today or the projections of today are going to be exactly right 30 years from now.
There are things that happen that change the trajectory and there are things that by their nature, we can't predict. People call them the Black Swan events in the corporate world. We had no Black Swan event at the time. We couldn't perceive that. My husband was traveling all over the world as his clients tried to secure oil and gas resources for the United States. We had our first child. I got home and I talked to him that night. I said, “Maybe I ought to think about it,” because I wouldn't have to travel.
A couple of weeks later, a position came open and I applied for it but I didn't get it. About 6 or 7 months later, another one came up because a judge had gotten in a whole lot of trouble. He was indicted for lying to the Judicial Conduct Committee. You can imagine that that's a big deal. He ended up getting convicted of perjury. In Texas, we run for elections. You can be appointed by the governor but from the moment you're appointed, you have to stand in the next regular election. This fellow was running and there were a couple of guys running against him because he was in trouble.
Over Thanksgiving weekend, he resigned. George W. Bush at the time was the governor of Texas. His office called and said, “Would you like it?” My husband is out of the country so I called him. He said what he always says with stuff like this which is, “Go for it.” I took the appointment and I was nine months pregnant. We had our son, Daniel, who was two. I was sworn in on December 5th, 1997. I tried a car wreck case so I could make sure that everything was going to work okay. I had Sarah on December 23rd, and then I filed on January 2nd because these two guys that were running against him said, “She's young and just had a baby. We think we can do it.”
“She’s vulnerable. Let’s do this.”
January 2nd, I filed to keep my seat. I won in the Republican primary without a runoff and I was elected that November in the general election. That's how I got started. I was a state court trial judge trying civil cases in Houston, which is Harris County. I did that for over six years, and then I was appointed to the Intermediate Court of Appeals, also sitting in Houston. I was there for almost fifteen years. I said, “You have to stand for election.”
Books have chapters and bookmarks, so briefs should have those too.
I was unopposed for a lot of those years. Harris County, in particular, is purple-blue and there are these big sweeps, where judges sweep in and judges sweep out. I was appointed to the Court of Appeals in 2004 and I was uncontested in 2006. I was contested in 2012 and won. In 2018, I was contested. Me, along with 450 other judges in Texas were all swept out because, in that instance, it was not a great year for Republicans. Everybody is independent, but everybody runs according to a party.
I was swept out in 2018 after having over 21 years on the bench. I then said, “What does that mean next for me?” I wasn't ready to do the retired judge thing. I thought, “I'm too young. I'm going to go back to private practice.” At this time, I went back to private practice and my husband had been at that other big firm all these years. I thought, “If we're going to both do business law for the legal future, we might as well do it together.”
They called me the morning after the election and said, “Do you want to come work with us?” At 2:00 AM, there's going to be a new normal and you don't know what it looks like. It was great when the next morning, somebody calls and says, “We'd like you to come work for us.” I ended up joining Vinson & Elkins, which my husband is in for many years.
That's an accomplishment.
He's never moved. He came from Ohio. He's been there the whole time. We ended up carpooling and having a great time. I had thought my judicial career was over, and then things happened. You think the ship has sailed and all of a sudden, somebody thinks, “It's time to turn it back into the harbor.” About seven months later, Governor Abbott’s office reached out and said, “We have this vacancy on the Texas Supreme Court. Would you want to be appointed to the Supreme Court?”
Did you say yes right away or did you have to think about it?
We were grocery shopping on a Saturday when we got the call. They asked me to come up to Austin, and I did and met with them. I had told Vinson & Elkins, “I won't ever leave to go back to what I was doing but if I ever got the call to be on the Supreme Court, I would go for that.” They were like, “Absolutely.” They were supportive of that. Probably they’re like me thinking, “That's not going to happen.”
They're like, “If that happens, but sure.”
I had an opportunity when the children were much younger and it wasn't good timing for me, and then I had wanted to do it later and didn't get it. It was one of those things where the timing didn't work out for them to appoint me and then all of a sudden, it works.
I was wondering how they reached out to you. You didn't call or anything.
I had applied for an earlier couple of seats. I had been in the hopper like the last time. It was one of these things where it’s like, “She's not the right one,” and then all of a sudden, things change. It has nothing to do with you. You haven't changed, but the needs changed and the timing changed. I had to run in 2020 because you've got to run for election. I got over 6 million votes. I'm the highest vote-getter in Texas history. I got more votes than President Trump at the time who won Texas, more than Senator John Cornyn, and more than anybody in Texas.
More than the Senator.
That won't last. Somebody will beat that record eventually. That is my hope. It doesn't have that much to do with me, but it has to do with lots of things. Having lost an election, it’s nice to have votes that big.
The contrast is nice having had the previous numbers.
Neither one is much in my control but it’s nice. That's my whole trajectory.
There's the appointment aspect but then there's the election aspect, which is not true for every state and certainly not for the Federal appointments. I've always thought it's challenging as a judge to run for election because unlike politicians, you can't promise and you shouldn't promise a particular ruling or constituency.
You can't take a position on issues that might come before the court. Texas is an outlier. It's not a great way, but I doubt that there's the political will to change the way judges are selected in Texas. We're 1 of 3 or 4 states that still have contested partisan elections at every level. We're unusual that way. It can be hard on the judiciary because you lose some of your institutional knowledge.
You have to work hard during these transitions to educate and help people that are new become successful because what you're most interested in is a successful judiciary that follows the rule of law and it resolves disputes. It's difficult to campaign saying, “I'm going to do my best to be fair and impartial and follow the law.” That's what a good judge should do and you can't say more than that getting into recusal problems.
That's a different calculus. I think people who would enjoy being on the bench may not enjoy campaigning in an election capacity. That seems like a different personality or interest. Few enjoy that.
Your law firm can be one of your biggest cheerleaders, but they cannot be your only cheerleader.
It's one of these things where some people are better at it than others and there are rewarding aspects to it, meeting with people, hearing about what's going on in your state. We're a big state and the topography is different. There’s a lot of diversity and we have a lot of different interests in terms of what makes our economy run. We have oil and gas, but we have agriculture and all kinds of stuff. Hearing about what's going on out there is wonderful. Meeting people is great. The time commitment is significant. That's one of the things you have to evaluate when you take on the job, especially when you're running for the Texas Supreme Court because it’s such a big state.
You're going everywhere. How have you enjoyed being on the Supreme Court? How is that different from being on an intermediate Appellate Court?
It’s been incredible. It's a huge responsibility but I enjoy the work, especially right now not standing for election and you can just focus on the law. That is the most rewarding part of the job. I enjoy my colleagues. They are terrific. I like being part of a deliberative body. When you're a trial judge, they call it rule and run because one side gives you this argument, the other side gives you this argument. You might ask a colleague, “What did you do in this case or that case?” You get their opinion, but you in the end internally make the decision.
With a deliberative body, the deliberative process involves conversation, the exchange of drafts, and further research. I enjoy that part of it, and to see how you can get to a better decision with that deliberative process is rewarding. It's harder to get to five votes, which is what the majority on the Texas Supreme Court with nine justices.
People will say, “How come in this case, you took the case but you just affirm the Court of Appeals? You said the Court of Appeals did everything right.” You have to remember, it's four votes to grant, five to decide. There may be four votes to grant a case but at the end of the day, it takes five votes to decide. That's different from the intermediate court or a circuit court on the Federal side because those guys decide usually in panels of three, so you're trying to convince one colleague at your position. Here, you have to convince five at least. You always try to get a consensus of all nine if you can get it.
It's different in terms of granting or deciding to review something and then ultimately, what the decision is. It could be that somebody decided to run but they grant to a firm or whatever. It could be a totally different perspective.
Sometimes you look at what's going on and you see there's a split decision. When that happens to be in front of you, it looks like that is the way that you're thinking personally before you discuss it with your colleagues. It's important to the jurisprudence of the state to take it so that we don't have a conflict percolating around and you say, “There's this many cases behind it.” That can be why it ends it.
Often, you maybe have an initial feeling from reading the briefing about why you think it's important to take the case and what you think might be the right outcome. When you go through that process, you have the argument of the lawyers, and you get to study the record and the law more, your initial opinion about the case can shift. That happens too.
I would imagine you're considering the impact of the rule that you're announcing on not just the case in front of you, but across the state and in other settings as well. That seems to be different. You're setting precedent for the state. Is it appropriate for other factual circumstances beyond the one that you have in front of you?
We try to find a rule that will cohere in other circumstances or will tie together. Maybe we've had a few cases out there already, but we haven't coalesced those cases around a central principle. Sometimes it takes 2 or 3 cases to do that. Sometimes it’s not. Sometimes it's an easy answer, “This is how we're going to do it as a matter of Texas procedure in Texas State Court across the state.” Sometimes it's not that easy because you're having to look at a different factual circumstance to see whether that tweaks the rule at all.
It sounds like you enjoy it.
I'm living the dream. I’m excited to go to work every day.
It's good that you have good colleagues that you enjoy working with and have mutual respect. That's always nice in any job. What advice would you have for lawyers who appear in front of you and your court in terms of some tips for oral argument or for brief writing that would make your jobs easier?
This is a simple thing for brief writing. You and I were on a panel about storytelling. That's how we met in Austin. It’s fun. One simple thing is books have chapters. Briefs should have chapters and they should be bookmarked because now there's so much electronic reading that happens. It used to be, we all picked up a spiral-bound brief. Now, at least in Texas and I'm sure in most of the states across the country, all briefs are electronically filed and kept in an electronic file room. A judge can access those briefs anywhere, as long as the judge has a laptop.
The first thing when you pull up the brief is you're going to scan that table of contents, but instead of scanning it on page seven, now you scan it on the left margin in the bookmark. If you bookmark your whole argument, you're giving somebody the title of every chapter of your brief at the beginning. That's a practical tip.
At least at the Supreme Court initially, the brief got to focus on why the court should take the case because it's a court of discretionary review. It's a different kind of advocacy than you would present to the intermediate court which has to decide your case. You're most interested in making sure that they decide it in your favor.
In the Texas Supreme Court, the first brief e-file is going to be one that's geared toward getting them the four votes that you need to grant the case. You're looking at, are there conflicts among the Court of Appeals? Is this a construction of a statute that's frequently used? Is it a problem in either procedure or evidence that's recurring or costly? Is there a better way? Is the decision just an outlier and needs to be corrected? We do some error corrections at the Supreme Court of Texas.
Those kinds of things are things that you focus on. During argument and briefing on the merits, the focus shifts to why your client should prevail. You talked about the one thing that can help, which is to list the 2, 3, 4, 5 or whatever the number of principles is that the court should focus on in determining how to decide the case and what the rule of decisions should be. Sometimes we have those out there already.
As a matter of statutory construction, you want to use what we've said you should use for statutory construction. If you're trying to come up with a rule, tell us how you think we should develop the rule, and then tell us what you think the rule should be. Hopefully, those two things match well together. You focus on the things that help your client. You remember to alert the court to the countervailing concerns and why your rule is the better rule and your position is the better position. It's always good to be sure to acknowledge whatever the countervailing considerations are because these cases are sometimes close.
Not to completely ignore them because they're probably perfectly decent concerns. You just don't think they should drive the result in this particular case, but you need to address them. You can’t ignore that they exist or that they are even probably going to be in the other side's brief.
To say that's not a problem, in this case, is not good because it's going to be a problem in the next case if we decide it this way. We're always thinking about that, “Is this going to be a problem for the next case?” You've got to have an answer to that? “No, it's not.” “It might be, but here's what you can do to ameliorate that.”
Whether it's in the standard, the rule, the factors or something like that, that would address that concern. To your point of explaining, “Here's the rule we would like to adopt and here's how it's applied here.” It's equally helpful to say disposition-wise exactly what you want, “We would therefore like a new trial. We would like it reversed for this new standard to be applied,” or something like that. Sometimes people forget the conclusion and punch line. It's like, “What do you want from all this?”
In Texas, we call that prayer for relief. In the end, you put a prayer for relief. It says to the judge exactly what you want to be done. This judge was in oral argument and he was flipping through the brief. He looks up and says, “Counsel, you don't have a prayer.” He meant prayer for relief. The lawyer said, “I know, Judge. I'm doing the best I can. What do you want us to do, render or remand?”
Sometimes the courtroom things that happened in real life, you're going, “I can't believe that happened.” I still remember to this day when I clicked on the Federal district court here. The judge I clicked for was being specific to these lawyers saying, “You only have one more sentence to make your point.” The advocate is moving forward and he realizes he's coming to the end of the sentence. He says, “Semicolon,” and then he moved up. It was the best. He was like, "I'm acknowledging that you told me only a sentence but I still want to get something else in." I burst out laughing and the judge couldn't stop him from moving forward. I thought it was well done.
It's okay to have goals, but try to live a little bit in the present.
I've noticed the run-on sentence at the end of arguments is starting to become a thing where it's continuing. You think to yourself you've got to end this sentence.
You got to wrap it up. That was a nice acknowledgment. Someone was exceeding what was requested but still barreling forward respectfully. He’s not going to go past the semicolon. I thought it was brave because my judge could be quite tough. I was like, “That was brave of you. I'm not sure I would have done that.” Do you have any suggestions or advice for those who might be considering becoming a judge in terms of involvement or things they should do to both determine whether that's something they would enjoy doing and how to put themselves in a position where it's more likely to happen than not?
The first thing I would say is to find that area of law if you want to get into the judiciary over on the litigation side where you truly enjoy what you're doing. Work at doing your best at what it is you do and broadening your skillset. I've been a judge for over 24 years in state courts, so I know hundreds of state judges. If you ask any person’s path, it never is the same. It’s like snowflakes, everyone is a little bit different.
The number one quality that you need is to be a highly skilled lawyer. The only way you would get that is by getting a lot of experience. The way you get a lot of experience is by doing something that you like so that when more gets thrown at you, you say, “Yes, more please.” It’s like you’re Lucille Ball on the conveyor belt and all these pies coming down, but you're happy with that because that's making you happy. You get better at juggling. Every layer of skill that you acquire gives you that foundation. That's the first thing.
The second thing I would say is that involvement of some kind is good because you need people who can vouch that you will do a good job for the government if you're selected. Whether it's through election, appointment, confirmation or some vetting process that requires not only the intellectual ability and the experience but also, does this person have the right temperament and the right judicial demeanor?
There are lots of good lawyers who wouldn't be great judges. How people are confirmed or elected is that others say, “This person will do a good job.” The only way they can know that you're going to do a good job is if you get out there and get involved. Some people are involved in politics and enjoy politics in general. That isn't the absolute only way to be on the bench. I wasn't incredibly politically involved, partly because you pointed out, I was so young. I was involved in my practice, young children, and lots of other things. Through my involvement in my practice, cases I tried, appeals I argued, and then through my involvement in bar work, community work, I got to know a lot of people. That helped a lot.
That’s the key. However, you do it is more than just the people in your law firm who need to know you if you're in a law firm.
Your law firm can be one of your biggest cheerleaders, but they cannot be your only cheerleader. It's the people you had cases against or that you worked on a project with. You can tell I like to talk but not in a room full of people that I don't know like if I went to a big cocktail party full of lawyers. I now have a daughter that's out of college and working. She says the same thing. She goes, “I don't even know what to do when I get in one of those rooms. I feel so uncomfortable going up and talking to people I don't know.” I was the same way.
What I suggest is if you have a thing you're working on together, it's easier to get to talk to someone. I would sign up to work a shift at the food bank or I would share some committee where we had a project. When we were working towards something shared, it was easier for me to get to know people. I wasn't great at the cocktail banter. You get better at it. It's a lot easier when you go to one of those things, one of those bar events. You walk in and you know a few people, “I work on this with him or her.” That helps. That's my recommendation.
Especially now with the pandemic, we're all a little bit rusty and we've banged against the cocoon. Especially for young people, it's been hard. On the other hand, now that the cocoon is opening a little bit, you're a little reticent to go out there. We need that human interaction. It's great. Whether you end up being on the bench or not, it's fulfilling. It's a big part of the career. All these people I knew in law school or had cases with when I was young are now all leaders in various aspects of the law. Who knew? I'm not sure that anyone would have predicted.
It's good to get out there and meet people in a wide array of practices and people you wouldn't meet otherwise as opposing counsel or co-counsel in cases, and to appreciate the wide array of practices that lawyers can engage in as well. Also, in the process, get to know people and people will become familiar with you as well. To your point of view, maybe you pushed the envelope a little bit for yourself but you don't do things just for some end goal. You do them because you want to and you want to serve the community in different ways, or it feels like it's the right thing to get out there. Frequently, that's bar and community service. It’s also having an interest in serving.
It's a skill. Being part of a community is a skill that you get better at too. You see what the need is and you try to address it. Your idea of what you want to become is probably going to change. Especially now, I don't know what the practice of law will look like. It will look different ten years from now than it looks now. Some of the young women I meet with are telling me at career counseling at law schools or something, “I need to develop this five-year plan.” I thought to myself, “It is hard to develop a five-year plan that isn't going to look completely different in five years. By the way, there are all these other things that happen. Life happens, family happens, lots of things happen.”
I would suggest that it's okay to have goals, but try to live a little bit in the present and say, “What can I do today that I'm not that good at?” Fill in the blank, “I haven't gotten to do that yet. I haven't checked that box yet. How can I get to do that?” It's in the middle of August and there's this dog case and the partner is going on vacation. I don't mind going down and trying to win it, even though I'm probably going to lose, which I did. When the opportunity presents itself, you’re not freaking yourself out about it going, “What does this mean for my future?” You say, “Right now, I could learn a lot doing this,” or “This would be fun to do.” Go do it.
I think of that in terms of skill-building too. You want to expand your skillset. Thinking about opportunities that allow you to do that and putting yourself in a position to be able to do that, but not in a way that's pushy or it’s like, “I should go to do this.” There are ways to do it in a great way.
In Texas, we have board certification. They do it in lots of places. You have to check a lot of different boxes. I remember saying to a partner, "I like to get board-certified. I need this many arguments and I have this many. If you'd keep me in mind, I'd appreciate it. I'll do all the briefing. I'll do everything." Just so they know, "She wants to get an argument." I took a pro bono argument. Do what you need to do. That's more of an attainable goal.
If you are a judge someday, you have value when you're sitting at the table because people say, “I like to sit at the table.” When you're at the table, what's hard is remembering that you're there for a reason. You're there to help, add to the discussion, add to the deliberation. Whether that's in a boardroom or in a community room at your children's school or wherever it is, the only way that you can have that when you get there is if you did all this stuff.
That's the thing about resilience, adaptability, and all these highly desirable but elusive traits. You don't realize you’re gaining them when you're in the middle of it. When you're in the middle of it and you've had some failure or setback, you feel crummy. You're not supposed to feel like, “I'm getting grit today.”
It's hard to feel that way at the time.
You feel crummy and you should. A setback is a setback. That's the thing, it's only in hindsight that you look back and go, “All those days I drove to Beaumont and took all those empty depositions, I was learning something that helped me later on.” You don’t always realize it when you're in the middle of it, but keep doing it and it will help.
That's good advice and a gracious way of suggesting that you're open to some opportunities. Building your skills is the best way to do that. I know I certainly have my own training criteria for appellate associates in our group where I say, “At this year, you need to have these skills.” I give that to them so they know, “For this job, this is the trajectory of your skills. I'm going to look for opportunities for you to do that.”
You're not just flailing around. That's a good mentor thing to do, to tell somebody, “Here's what you need to be looking out for.” Whether they stay with your firm, go somewhere else, go in-house or do anything, they've got building blocks. The building blocks can get shuffled around in lots of different ways and turn into lots of different career paths. You're advancing that. That's nice.
I started to think about it. I’d say, “We have trajectories. At this point, you should have these skills.” How are you going to be in a position to say to them if you're going to review them at the end of the year, “Here's the level I expect you to be at.” You need to tell them in advance so that they can also look for those opportunities.
You have a role in mentoring and training people to make sure if you put them on the list, you need to make sure that you think about and look for opportunities for them as well if they haven't found them for themselves. Make sure they have that because you can't legitimately say, "I want you to have these skills, but I'm not going to give you an opportunity or offer you anything to do it." Everyone should be doing that for themselves in some way.
Don't put too much pressure on yourself. Dial it back a little bit because you could lose your confidence.
It’s not making it so hard on yourself. It seems daunting if you say, “Someday I want to be a partner at this law firm.” Whatever it is that you want, dial it back down a little closer to the present and see, “What can I do right now?” It doesn't become such an all-or-nothing thing that you go to this party and you think, “I got to make one million contacts,” or whatever it is. That seems so daunting because you've put all this stuff on it for the future. Sometimes, you just have to say, “That's going to be a future Jane problem. I'm going to do what I can do right now.”
There are lots of great psychology books that talk about asking yourself, “Is this going to be important in 10 minutes, 10 months, 10 years?” You can also go backwards and say, “Ten years, I have no control over. Ten months, not much control over. Ten minutes, I have control over. What can I do in the next ten minutes?” I encourage people that are super goal-driven sometimes to not put too much pressure on themselves. If you find yourself feeling a lot of pressure, think about dialing that back a little bit.
Break it down into bite-sized which you have some control over at that point in time. That's a good point. It can be overwhelming and sometimes it can immobilize you. You're like, “I can't do anything.”
You can lose your confidence. It's hard enough to gain confidence in law because we're in the business of setbacks. We represent clients that sometimes win, sometimes lose. Developing healthy confidence can be challenging for some lawyers. Healthy confidence as opposed to arrogance. It's a balance. Some people have no problems with confidence, but some people do.
Those are good things for whatever you want to accomplish.
I would add one more thing about considering a future in the judiciary. The difference is that the judiciary is about decision-making. The trial sides about advocacy are sides about decision-making. It's new in the last several years, a lot of it came from economics. The great thing is there are now all kinds of scholars who are writing all kinds of wonderful books about how to be better decision-makers.
If you think that this is something you might want to do someday, it's not a bad thing to think about, “If I do ever have this job, how can I develop better decision-making skills?” The big breakthrough that we had was scientist Daniel Kahneman, but even before then and even behavioral economists, we had started out thinking about the idea of the rational human being or the rational economic actor.
As with most human beings, we think we're good or rational decision-makers. The big breakthrough that came in the last few decades is we're not. We aren't always rational decision-makers. There are all these heuristics or the decision-making shortcuts we use to make decisions quickly, which we need to do in our daily lives. Learning about how to make better decisions can make you a better decision-maker. Learning about potential cognitive biases that you might have can make you a better decision-maker. It's not a bad thing in your spare time to read and look at that kind of thing because that's what you'll be doing.
Sometimes people are caught off guard, particularly when they first come from private practice. They’re like, “I can write a beautiful opinion. I just don't know which way it should go.” Everyone's looking to you to make a decision. One book that came out is Noise but there have been lots about how to recognize potential hiccups in your decision-making and ameliorate them. That's what we do as a deliberative body. It helps with that.
It would help in any decision that you make as well.
It goes into personal and professional.
It's a good reminder of what the difference is between being a lawyer and being a judge, and in terms of ultimately, what are you expected to deliver a decision?
I've always thought dissents are fun to read and can be fun to write largely because there’s a return to the advocacy that you had as a lawyer. You don't have the weight of the decision because your position didn't carry the day. They can be liberating in that sense. Most judges do care about the resolution of the outcome. Even though that carries weight and potentially is not as freeing in legal analysis to get there, they would much rather be in a majority if they can. Sometimes during the dissent, it is a return to that because you're not carrying that weight any longer.
I hadn't thought about it before but that is why there can be personality and flair to a dissent because there is an element of advocacy to it. You are speaking to the future in that way. You're advocating for a future rule or a change and it's just you. Maybe there are some of your colleagues.
It’s you and some of your colleagues sometimes. Sometimes you think to yourself, “If I only could have gotten one more.” The other thing is you've got the courage of your convictions. You've thought about it. You've considered every perspective and you don't see it the same way. You're going to write, "There's this other principal reason for resolving this case." It is different from writing the majority of the opinion of the court.
Do the members of your court have any kind of philosophy with regard to do you prefer to have more consensus and less dissent? Some courts work hard to find common grounds so they can get to as clear a notice as possible that the court overall agrees with this particular result, and to reduce the number of dissents or even concurrences that might be there. Is there any philosophy that your court has?
There's no overall court philosophy. Individual judges have different approaches. One of the things is that you do not ever want to push somebody interested in airing an alternative thought about a case. That's a personal choice on their part whether they're going to write separately. Sometimes it can be that the person is saying, “This is what I'm interested in. I can't go with the majority opinion that has this in it.” That's different because then you're maybe trying to narrow the rule of decision and saying, “We have consensus around this, which is the main principle. We don't have to decide this other thing until some other day to come.”
That can impact the scope of the decision and the reasoning.
That can be helpful. Sometimes you achieve consensus around this principle because you've tightened it. There's not a court philosophy of having separate writings. You want everyone to vote their conscience.
In some circumstances, if you're able to find a more narrow path to a decision, you may end up having someone writing a concurrence with some other point that they would like to address.
Sometimes that's good. Sometimes whatever it is that you were worried about goes away. For whatever reason, the legislature amends the statute or something changes. Even in the short time I've been at the court, I'm surprised at how often that happens. We think, “We've decided A. We're going to get B any day now,” then lo and behold, something happens and we don't get B because it was resolved some other way than through the court or all the way up to the Supreme Court. The court does not always resolve disputes, but sometimes things are resolved outside of court. By that, I don't mean necessarily settlements between two parties but legislative resolution or some change in society. The future concern that you had is gone.
That's a good reminder that it's one part of the various branches of government and things can get resolved in other branches as well and may not come back to the court. I wanted to close with a few lightning-round questions. First, which talent would you most like to have that you don't?
I would like to be taller. Is that a talent?
It's a physical characteristic.
I've given up on all the other talents I lack.
You haven’t given up on being taller. I appreciate that. That's obstinate and persistent. Who are your favorite writers? I know you like to read a lot.
I read lots of crime novels, mystery novels, and pulp fiction. I'm fond of Dickens, the flourishes, the morality tales, and the long descriptions of the various characters. I'm always taken aback at how his descriptions can be applied to people now.
I suppose Dickens and Shakespeare are in that way in terms of understanding human nature. That doesn't change throughout the years.
My son is very good. He's going to be a pediatrician but he's good at Shakespeare and I'm not because I was a Business major. We got to go see him be in a play and he has written stuff. It's fun because everything I know about Shakespeare, I’ve learned through my child, other than the high school Shakespeare that we all had.
That’s a good answer because I don't know how many people would be able to say the same thing about that, “Everything I know about Shakespeare is from my child.”
My child ended up being an English guy, one of them.
What are you most grateful for in your life?
My family. I'm 1 of 4 children in my own family. In my family, we have two children. If you have one takeaway from all of this, the best piece of advice I've ever had is from my younger sister. It’s to save the best part of yourself for your family or your friends who are like family. Careers have highs and lows and jobs come and go. At the end of the day, we tend to put a lot of our energy into our profession. We tend to put our best foot forward with whom we work and even maybe with people that we meet in the grocery store. We let our own family see ourselves, which sometimes it can be that you are exhausted, annoyed or whatever self.
Her advice was always, don't forget to save the best part of yourself for your family. If you have a frustrating day at work, on the drive home, the subway ride home or wherever you are, “That wasn't a great day but I'm going home to my family. They got to see the best part of me today.” That isn't to say I was always perfect at that or I am always perfect at that. If you remember it, it can help make your life fulfilling.
Especially on a tough day.
Tough professional days are usually pretty transient. If you can pick yourself up, you're going to find a new thing. It's not easy and you don't have to know what it is when you're in the middle of a bad day. With family, that's a much harder thing to rebuild. It's worth cultivating.
That's a good touchstone and a reminder. You're right. You tend to feel like you can let everything go and be a little grouchy.
Grouchy is the right word. It's like, “I love this person. They're going to love me no matter what.” It's probably true. They're still going to love you even if you're a little grouchy. That can become a habit. Think, “I'm not going to be a grouch to this person who, more than anything in the world, is the person that's going to be with me.”
That's good. Your sisters are on it so that's good. It's a good thing you adopted it to remind yourself. Given the choice of anyone in the world, who would you invite as a dinner guest?
I'm not interested in having it guests. Dinners are built to share love and build community. The people that you love and want to spend time with are my favorite dinner guests.
It’s fun to have someone cooking, preparing, and having that time together in the kitchen without hopefully, getting to say about different things that happened. There’s that too.
You can get better. Thanksgiving dinner in year one is different than Thanksgiving dinner when you're 30 because you've learned a ton about what to do, what not to do, what you can let go of, what is the crowd favorite that has to be there. You’re still getting up at 5:00 AM. I've been to some great dinners and met some amazing people and they've been wonderful too. If you were going to say, “You can only have one dinner, Jane, what would it be?” You want to be with your friends and family more than you want to be with somebody that you don't know.
It's heartwarming. It's about quality time together. It's good. My mother says, for her part when she would tell me how to cook things, “Cook it until it looks right,” when I'm helping her cook the meal. I’m like, “What does that mean?” It's second nature to her. She's like, “Of course, it looks like X.” I’m like, “Okay.” Other than those little bumps in the road that happened, it's all good and fun. Finally, the last question, what is your motto if you have one?
It's not my motto. St. Teresa of Calcutta would say the word yes every morning when she woke up. I don't do that. There's lots of talk about this that we tend to say yes too much and we have to learn how to say no more often so that we can put boundaries around our life. When I've been stretched either legally, intellectually or emotionally, it’s the times where we’ve said yes. I would say that my motto is to say yes when you can like this show, for example.
I'm glad you said yes. I’m glad that’s your motto.
Say yes because it tends to be good.
I'm glad that you said yes and follow the advice of Mother Teresa. Thank you so much, Justice Bland, for joining and having this wonderful discussion.
It's been a pleasure. I hope to see you soon.
Thank you so much. It was such a joy to do this. It was so much fun to work with you on the Summit panel as well. Thank you again.