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Texas Lawyer – A Glimpse Behind the Gavel

by BRENDA SAPINO JEFFREYS

bjeffreys@alm.com

@BrendaSJeffreys

Stanley Schneider, a criminal defense attorney in Houston for nearly 40 years, was gearing up late last year for his first-ever oral argument before the U.S. Supreme Court when he ran into Adele Hedges, the former chief justice of the Fourteenth Court of Appeals in Houston.

As a result of that chance encounter, Hedges helped Schneider prepare for his oral argument; it’s a practice niche that Hedges is building as part of her medication/appellate practice in Houston. She retired from the court in September 2013.

With a goal of helping lawyers understand what judges need to glean from an oral argument and how to present it, Hedges may be forging a new path.

“I don’t know of any former appellate judges who expressly market it,” said Kevin DuBose, a partner in appellate firm Alexander DuBose Townsend & Jefferson in Houston.

He said his firm has hired former appellate judges for moot courts for oral arguments a handful of times in the past, but he hasn’t heard of other judges marketing that practice area.

DuBose is familiar with the market for oral argument preparation. About five or six years ago, DuBose said, he and his partners Roger Townsend and Doug Alexander decided that they would market a service to help lawyers prepare for oral argument before the Texas Supreme Court. He said they put together a brochure that touted the appeals they had argued before the state’s high court and their experience teaching at law schools.

“I don’t know that anyone ever hired us. Maybe we did a bad job of marketing,” DuBose said, noting that the firm’s appellate lawyers do occasionally provide oral argument advice to other lawyers.

Hedges, a justice on the First Court of Appeals in Houston for 11 years before becoming chief justice on the Fourteenth Court, said her goal is to help lawyers provide the court with what it needs.

“What lawyers have to understand is that their first obligation in oral argument is to help the court. This is not a debate society,” Hedges said.

For Schneider, Hedges offered to participate in a moot court session that Schneider had scheduled in January with some lawyers from Susman Godfrey of Houston, including three former Supreme Court clerks.

Schneider represents Doyle Paroline, who was convicted of possession of child pornography. Paroline appealed a U.S. Court of Appeals for the Fifth Circuit decision that found him liable for damages suffered by a woman known as “Amy,” who was photographed while being raped when a child.

During that moot court session in January, Hedges told Schneider that one of the most compelling issues in Paroline v. United States was the relevance of 18 U.S. Code §3664(e), which says that disputes over determination of restitution shall be resolved by a court.

“I went back and did a whole lot of work and tweaked my argument to embrace her thoughts,” Schneider said. He noted that during his Jan. 22 argument, he emphasized the importance of §3664(e) by saying that for the government to demonstrate that the victim sustained the damages, the defendant’s acts had to cause the victim’s losses.

“That became important within the argument,” Schneider said.

Schneider said he participated in three moot court sessions when preparing for argument in Paroline—the first was with a group of federal public defenders in Houston, the second was with the Susman Godfrey lawyers and the last was at the Georgetown Law School Supreme Court Institute—but Hedges’ suggestion became a key part of his argument.

Schneider isn’t the only lawyer whom Hedges has helped prepare for oral argument in the months since she went into private practice after 21 years as an appellate judge. Brian Wice, a solo in Houston, consulted with Hedges on his March 19 argument before the Texas Court of Criminal Appeals in Ex Parte Robbins.

Wice said Hedges was “instrumental” and “invaluable” in helping him prepare for his pro bono argument in Robbins.

Neal Hampton Robbins, who was convicted of capital murder, seeks a new trialin the wake of the state’s new habeas law, which added Article 11.073 to the Texas Code of Criminal Procedure. It authorizes a court to grant a new trial based on relevant scientific evidence not available at the time of a convicted person’s trial.

Robbins contends he is entitled to a new trial under the new law, which became effective Sept. 1, 2013, because an assistant medical examiner recanted her 1999 testimony that helped convict him.

Wice said Hedges helped him craft his first comment to the court, when he said the appeal is about “bad science and broken promises.”

“That, in my estimation, cuts to the quick,” Wice said.

During his argument, Wice told the court that the bad science was the assistant medical examiner’s determination of the manner and cause of the death of 17-monthold Tristen Rivet. Robbins was convicted in Rivet’s death. Wice said the broken promise referred to the criminal justice system’s promise to give Robbins a fair trial.

In helping him prepare for the oral argument in Robbins, Wice said, he and Hedges talked for about 90 minutes about the four or five likely areas that would concern the court, such as the “CSI” effect, which he describes as a juror’s view of forensic scientists as the “new high priests of the courtroom.”

Wice said he and Hedges both recognize that “we live in a sound-bite society,” so she helped him come up with the areas where he should prepare a sound bite that would take the complicated legal issues and distill them.

“She’s so low-key, but she’s so good at what she does,” Wice said.

Wice said Hedges also is working with him on an appeal before the Fourteenth Court for Rodney Wayne Allen, who has appealed his 2013 murder conviction.

Hedges said that after spending two decades on the bench, she developed some pretty strong feelings about what is effective in oral argument and what isn’t, and she enjoys helping lawyers hone their argument techniques.

She said it’s most important for lawyers to know that “what’s not effective is merely parroting what the brief said.”

She is convinced that the best use of oral argument is focusing the court’s attention on what’s most important, what she describes as the “headline” of the brief.

Hedges said she attended an oral argument recently where the appellant’s lawyer spent the first five minutes of his argument explaining “very nicely” to the court what the appellee’s argument was.

“It was astonishing,” Hedges said. “He didn’t promote himself at all.”

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