The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

From Judge Brister:

I first met Chief Justice Joe Greenhill on October 5, 1979. The Texas Supreme Court was quite different back then: all white men, most in their 60’s, and most with decades of experience on the judicial ladder. And all were of course Democrats (Judge Garwood would become the first Republican a month later).

In those days, the Texas Supreme Court had fewer law clerks, and paid them less too: the $15,000 salary translates to about $36,000 today. But that was more money than I ever made before. And high-school friend Andy Hanen (now U.S. District Judge in Brownsville) had given glowing reports about his recent service as Judge Greenhill’s briefing attorney, so I took the chance.

Leaving Boston during a snowstorm, I arrived in Austin on a beautiful fall football weekend. The score that Saturday was: Texas 26, Rice 9. Both weather and culture commended Texas over New York for a future legal career, wherever it might lead.

In those days, the Court interviewed law clerks en banc ― 9 against 1 around the Court’s big conference table. Intimidating, yes, but a briefing attorney’s main job back then was orally presenting writs to the entire Court, so one had better be prepared for it. After the interviews, the justices in order of seniority picked one briefing attorney each, with the Chief getting two clerks by choosing first and last. I never found out whether I was Judge Greenhill’s first or last choice.

Upon arrival in August 1980, there was one clerk’s office in the Chief’s chambers and another across the hall in the library. Co-clerk Sally Miller won the toss, so I retired to the library ― which after remodeling was about the same spot where my desk sat when I became a Justice more than 20 years later.

One of my first assignments from Judge Greenhill was a memo on a writ of error complaining about an opinion from the Waco Court of Appeals (the more things change . . . ). In Cherry Springs Ranch v. Graham, a contractor hired to remove dead cedar from a planned“ leisure community” accidentally set it on fire. 

Despite glossy photos of the fire damage, the jury found in issue 1 that no fire had occurred (which is why we don’t ask “granulated” issues any more). The trial judge, honoring the sanctity of jury verdicts, rendered a take-nothing judgment. Finding the verdict somewhat against the great weight and preponderance, the Waco court reversed and granted a new trial, and the Supreme Court (as recommended by my memo) denied the writ. 

“How could a jury do this?” I asked Judge Greenhill. “Oh,” he replied, “maybe the jury didn’t like the Plaintiff’s attorney, or the corporate representative, or maybe they just felt sorry for the defendant.” It was the first of many lessons in why we have both juries and appellate courts.

Judge Greenhill had a legendary memory to match his legendary reputation. By 1980, he had been on the Court for 23 years; he didn’t just know the law, he remembered the cases. Discussions about what a past case meant were often decided when Judge Greenhill would produce his carefully bound handwritten notes proving who-said-what many years before around the Court’s conference table. Indeed, when I mentioned my Cherry Springs Ranch experience during a re-election campaign, a week later I received a copy of my memo on the case ― which Judge Greenhill had saved for 24 years.

Much could be written about Judge Greenhill’s scholarship, legal acumen, and reputation. But three other characteristics really set him apart. First was his concern for the dignity of the Court. I vividly recall the day an attorney inadvisedly used the word “heck” during oral argument. Judge Greenhill stopped him cold with a lecture on profanity. I don’t think I have ever used the word “heck” since that day.

Second was his humility. He was never the kind of person that expected you to stand when he came into a room (unless it was in an official capacity, and then you had better be quick about it). For many years he held the award for driving the Court’s least impressive personal vehicle, a title he relinquished to Justice Hecht a few years later.

Third was his faithfulness. After 25 years on the Court, Justice Greenhill spent the next 25 years working at Baker Botts. To say the least, he took root wherever he was planted. If (as Woody Allen says) “80 percent of success is showing up,” surely such faithfulness was part of what made Judge Greenhill a success.

Like many other youngsters, I grew up dreaming of being in the movies, or on TV, or maybe becoming President. I never dreamed of being a judge. But my year clerking for Chief Justice Joe Greenhill and the Texas Supreme Court changed all that.