Senior District Judge, State of Texas
It is time for me to reflect as I complete 50 years in the practice of law.
I was sworn in on September 16, 1968 by an appellate Judge in Houston, in his chambers on a
Friday. I had to be sworn in early rather than in Austin because I had been assigned to try a case
the following Monday by the small firm I was associated with. So, within 7 days of being a lawyer under my belt, I go to trial in Houston representing an elderly man of color in a personal injury claim. He had been injured in an automobile collision, had no incurred medical and testified he had treated himself by using “bear grease”, literally bear grease. The jury was empathetic, they correctly found liability and but no damages.
My next trial soon followed, another injury case where the Plaintiff testified in his deposition that he had never been injured before, when in fact he had filed a workers comp case the very day of the deposition. This came out during trial, in front of the jury. The Court excused the jury, told me to take the client to his chambers and instruct him on the pains and penalties of perjury. In doing so, the client defended himself by telling me I had told him to lie. We go back in and I orally nonsuit the case. The Judge brings the jury in and advises them that jury trials are a search for the truth and in finding the truth it will reveal falsehoods and lawyers who tender falsehoods. I was humiliated.
After walking my cases to the courthouse on a leash in Houston for my first year, I decided that
this was not the life for me, personally or professionally. My mother’s family is from Leon County, dated from the 1870’s. I also attended Lon Morris College in Jacksonville. I wanted to return to the country. In my search I fortuitously make a cold call in Crockett. Joe Griffith meets with me and advises that Jim Bob Paxton’s partner (Melvin Whitaker) had moved and I might try him. I drive to Palestine, meet with Jim Bob and he takes me to the Anderson County Bar meeting luncheon which was coincidentally being held that day. The lunch was at the Tex Ann motel, there used to be a restaurant as part of the hotel. I leave with an offer from Jim Bob and return to a skeptical wife in Houston.
We moved to Palestine on October 20, 1969 under less than abundant circumstances. For the first 4 or 5 months Karen and I could not afford a refrigerator for our duplex. We kept our milk and eggs in the window, later moving to an ice chest. Then we were able to pay $50 for a used
refrigerator, a step forward. Jim Bob and I agreed he would pay me a draw of $500 per month
against 60% of what I was able to produce in fees. It took me a year and a half to bring in enough
fees to beat the draw.
Melvin returned from Washington and joined the firm. Melvin Whitaker taught me how to
practice law; he made me a lawyer. He was one of the finest lawyers I have had the honor of
knowing. He gave me the wisdom to look fundamentally at legal situations. He taught me that the basic first question to be asked is- “Does it pass the smell test”. That may seem ephemeral, but in actuality it is the essence of the ethics of our profession and the practice of law. Governor Briscoe, a friend of Jim Bob from his legislative days, appointed Melvin District Attorney. From there Melvin ascended to the bench, presiding with excellence and equanimity. Hanging on my wall is his funeral card, I view it daily for inspiration.
My first trial in Anderson County followed shortly after moving. In early 1970 Jim Bob gave me
a case to try. It was a trespass to try title case. On the other side was Bob Reeves and Billy Fred
Hargrave. Bob was a long time Palestine lawyer from Oakwood. He had boxed in his youth and
his face and nose showed it. He was a good country lawyer. Billy Fred was a legend. He was
colorful, had fought the bottle and was County attorney; at times those roles conflicted, resulting
in many stories.
(Background: remember this was 1970, 48 years ago, Palestine historically had been and to a
certain extent was still part of the Deep South. John McDonald was on the school board and to
his credit helped marshal the integration of the school system, later than other similar systems. My clients were black, generational residents of the Tennessee Colony area, who claimed by adverse possession; the title was held by the largest land owning family in that area, also generational residents, they were white. The land in controversy was a typical sandy bottom creek of 5 acres, no banks, no definite course; the clients had used it to raise hogs for generations. I never will forget Jim Bob, who was old school, instructing me on proper way to voire dire in Palestine as compared to Houston. He said “if their (person of color) name is John Johnson, you call him ‘Mr. John’; if a woman named Sue Johnson, you call her ‘Ms. Sue’.) I ignored his instructions.
The case was before Judge R. W. Lawrence, my first appearance before Judge Lawrence. Jim
Bob gave me the case shortly before trial and in my first hearing with Judge Lawrence was for a
continuance. I simply told him the truth, I was not ready. He granted a young lawyer grace and
reset the case. My clients could not afford to pay a fee. Karen and I would get up on Saturday and on most mornings, on the back steps of our duplex would be food- vegetables, corn, squash, etc. They paid as they could, which I accepted as a widows’ mite.
We tried the case to an all-white jury and won. There was an appeal to Tyler. I will never forget
Billy Fred’s opening statement to the Court: “You’re Honors, if this was 30 years ago, we would
not be here.”
In trying the case to establish possession, I asked “have you used possessed and enjoyed the land
from ____ to ___ (by decades) each and every year”; then I would ask what they did in possession and its exclusivity. The Court reversed and rendered the judgment by stating I had not proven adverse possession. I did not ask for EACH SPECIFIC year, instead I asked by decades, from ___ to ____. Had I asked per year, individually, I would have proven adverse possession. Lesson learned. I believe that may still be the law.
In addition to Melvin, Judge Lawrence was my other mentor. He became a father figure to me.
Melvin taught me how to be a lawyer, Judge Lawrence gave me the example of how to be a Judge. Both in essence taught me to “leave a little on the table”. Melvin emphasized that the practice of law is a continuum, not an end. You may be up in one case, but that is not the end, for you will be down in another. In negotiations you should always leave a little on the table, for in doing so you do not deprive opposing counsel of dignity, in defeat. And, in the continuum you will be on the receiving end of grace instead of the granting end. Judge Lawrence taught me by observation that in judging to remember the Biblical instruction of Micah- seek justice, love mercy and walk humbly. By practicing justice, loving mercy and walking humbly as a judge, you in essence “leave a little on the table”. Judge Lawrence’s life was an exemplification of the principles of Micah. Judge Lawrence swore me in as President of the State Bar as well as Judge of the 3rd District Court. Also hanging on my wall is his funeral card and additionally a handwritten card that “the torch has passed” together with a copy of his announcement for judge of the 3rd District Court. I view each daily for inspiration. My mind goes back to the lawyers in the past of Anderson County, whose dust still lingers in the halls of the courthouse. In recollection without particular order, Alfred Summers, crippled in pilot training during WWII and confined to a wheel chair; John McDonald with whom I tried many cases, one in particular sticks in my mind. We were in trial before a jury. I kept my file in a red rope binder. We break for lunch and I go to the restroom, returning to find my red rope binder, my file and papers missing. All during lunch I fretted over the missing binder. Shortly before the resumption of the trial, in walks John with my red rope binder, and sheepishly says “I must have picked this up by mistake”. John was a warhorse of a lawyer, with many interesting and colorful stories surrounding his life.
Stories abound about Judge Tate McCain. I loved to try cases before Tate. He would put all 350
pounds on the bench and listen, injecting humor both by his presence and his personality. Tate had an innate sense of the law and a deep insight into life. There are many stories about Tate, most are true.
I was in trial with Tate in Leon County in the old wooden court house. The windows were open
for air, it was not air conditioned. You would have to stop talking as the 18 wheelers geared down to stop at the square. During the trial, Tate was smoking on the bench. As he smoked he would flip his cigarettes out the window. Soon we noticed smoke come up from the window he was throwing his cigarettes out of. Tate had set a pigeon nest on fire. Another time in Freestone County, I was in final argument. In that courtroom as you address the jury your back is to the bench. I was deep into my argument when the jury started laughing, confused I checked to make sure I was zipped, and then turned around. Tate was on the bench, ½ a grapefruit in one hand, arm extended fully above his head, his mouth open and dripping grapefruit juice into his mouth.
Terry Thorn and I had the pleasure to represent Tate in his case against Ford for his farm truck
jumping from park to reverse and running over him. Ford wanted to inspect the truck and we agree to deliver it to the Ford house on the square. Tate takes it over and it is inspected. Then we get the pictures of the inspection. The complete bed of the pickup was covered in crushed beer cans. Evidently Tate would drive his truck on the farm and drink his beer. Then he would just crush the can and throw his cans from the driver’s seat into the truck bed. We had not thought to inspect the truck before Tate took it for inspection; lesson learned. This is the Ford trial which resulted in my losing my temper during a hearing resulting in my filing a grievance against myself and pleading no contest to misdemeanor assault; lesson learned. There are more great stories about Judge Tate McCain, they are legion, but bottom line, he was a damn good judge, a friend of lawyers and student of the law.
Continuing to think of lawyers of Anderson County in the past, my mind goes back to Richard
Handorf, district attorney; Jerry Sadler, Commissioner of the General Land Office who showed
up in my office to introduce himself within my first year in Palestine, historic figure, who would
recite events by date, specific date in the past irrespective of the distance past; Alton King who
would not use a printed deed form but would type it out, by hand, broiler plate and all, on a nonelectric typewriter; Franklin Williams who had an office practice downtown with his wife as his secretary; Luther and Hoyt Johnston on the square; Henry Jordan, State Bar board member
who played tennis daily and sent out regularly words of wisdom; A. D. Henderson, long term city attorney; Bobby Duvall father of the actress Shelly Duval who followed his ex-wife and her new husband all over Africa after their divorce; Ernest Swift, good lawyer of persistence, the lawyers said that being opposite of Ernest was like being pecked to death by a duck; Mac L. Bennett, a true country lawyer of Normangee, Texas, with ties to my family, he was appointed to the bench and subsequently resigned by announcing in the middle of a trial as judge (he was an alcoholic and knew that being a judge presiding in a case under alcohol was not a viable mixture)- Mac later died in the new courtroom in Leon County while making an argument to the court, while the jury was in the jury room, he was laid out on the counsel table, dead; John O. Davis who initially partnered with Rayford Price, Rayford left town after being defeated for re-election, while a sitting Speaker of the House, now living in Austin. Recently John Van Meter, Jerry Hanson, Chris Kolstad and Judge Bascom Bentley have now passed.
In reflection, after 50 years of practice, here is what I have learned:
• We are all Priests in the Temple of Justice;
• In practice as well in life, we need to determine what is worth fighting, concede everything
• Discovery fights are normally an indication of bad lawyering- in requesting be reasonable,
in responding (absent clear authority) provide it;
• Fight the good fight over matters worth fighting, don’t be known as the lawyer who fights
over anything and everything;
• Be prepared in order to fight the good fight:
I firmly believe that any man’s finest hour, the greatest fulfillment of all that he
holds dear, is that moment when he has worked his heart out in a good cause and lies
exhausted on the field of battle – Victorious.
• Have the courage to win or lose, key is not winning or losing per se, but in the willingness
to do either:
“George Washington had the heart of a warrior and the instincts of a gambler” –
Almost a Miracle
“You have to know when to fold them, know when to hold them”- Judge Lawrence
quoting Kenny Rogers
• Reputation: a lawyer’s most important asset;
• Be honest and knowledgeable; act ethically when nobody is looking;
• Hourly billing is the bane of the legal profession;
• Wherever you go, that is where you are going to be; and,
• Give back:
“Let us endeavor to live that when we come to die even the undertaker will be sorry” – Mark Twain