Outsourcing the Experience

When I was a First-Year law clerk with Hinton, Bailey, Sussman & Davidson way back in 1997, I had the opportunity to be introduced to the Judge of the 262nd District Court, Doug Shaver.  He asked me what I planned to do when I finished law school and I told him that I wanted to go back home to Brazos County and work at the District Attorney's Office.   He asked me why didn't I want to stay in Harris County and work for the D.A.'s Office here.

In that special brand of arrogance that is so typical of a first-year law student, I told him that at the Brazos County D.A.'s Office, they prosecuted only felonies, and I would be able to jump right in and start trying murders as soon as I got out of law school.  I elaborated by telling him that if I went to Harris County, I'd get stuck trying DWIs and other misdemeanors for too long before I got a chance to start trying the good stuff.

Judge Shaver shook his head and smiled.

"Son, you don't need to be looking down your nose at those DWIs and misdemeanors.  You need to know what you are doing before you start trying serious cases," he said.  "Misdemeanor is where you learn."

Although I didn't want to agree with him, I knew better than to argue. It would be years later before I came to realize how right he was.

I think most of us who have been lawyers for a couple of decades several years now can fully recognize the hubris we have in law school.  To be fair to our younger selves, having that level of cockiness is somewhat necessary if you want to be a trial lawyer.

Obviously, I ended up in the Harris County District Attorney's Office, and on the day I started, I went to the Justice of the Peace Divison.  The arrogant law student from 1997 wasn't even assigned to handle something as serious as a DWI.

I was trying freaking traffic ticket cases.

In retrospect, the four months I spent in the JP Division were some of my fondest at the Office.  I made some great friends.  The camaraderie was tremendous -- and it remains the single thing I miss the most about the Office.

But most importantly, I learned how to stand in front of a jury and try a case.

And if I lost that case, the Scales of Justice weren't too badly damaged.

We tried them all back then and we won sometimes.  We lost a lot.  We tried No Seat Belt cases, fishing without a license, speeding, running stop signs, expired registrations and inspections and (on super serious days) Passing a School Bus -- the capital murder of the Justice of the Peace Division. We would try four or five jury trials a day sometimes.  Sometimes, more than that.  We didn't have to prepare.  Our offense reports were literally traffic tickets.

After four months, we walked out of the JP Division feeling completely at ease with picking a jury, presenting evidence, and doing closing arguments.  Granted, Justice of the Peace Courts are not courts of record, so none of us really walked out of there as procedural rocket scientists, but we learned the fundamentals of Criminal Law and Procedure in a way that just can't be taught in law school.  Not even being on a law school's mock trial comes close to the real thing.

Back then, some of the big firms in Houston recognized the value of rookie lawyers getting some experience in the JP courts.  They offered to send some of their new baby lawyers over to get some experience by trying cases on behalf of the State of Texas.  Those offers were politely declined by District Attorney Johnny Holmes and later, Chuck Rosenthal.  They knew the value of Baby Prosecutors getting that experience and (say what you will about past HCDA regimes) they knew the building blocks of cultivating a rookie and turning him or her into a damn good trial lawyer.

In short, the Justice of the Peace Court experience was priceless for those of us dumbasses, fresh out of law school.  Just like how most of us start our first driving lesson in a mall parking lot or on a dirt road out in the country, we needed to get comfortable with the machines we were operating before we took them out on the freeway.

I bring all of this up now, because of this:

On Monday, District Attorney Kim Ogg proudly announced that she was going to reverse the previous longstanding policy of administrations past, and take those prestigious law firms up on their offers to play prosecutor in the JP Court.  If you notice by the number of comments, it generated a lot of commentary in the Twitterverse.  A lot of that commentary was pretty damn negative. [SIDENOTE:  I totally learned this new trendy term yesterday from some people a lot younger than me called "Ratioed," which apparently is the verb used to describe what happens when you get more comments on your Twitter post than you get likes or retweets.  As in, this post by Kim Ogg totally got ratioed."  Who knew?]

The firms Baker Botts, Bracewell, Hunton, Andrews & Kurth, and Vinson & Elkins are the four big beneficiaries of the new part-time prosecutor gigs.  Coincidentally, those firms all donated to Kim Ogg's campaign.  There's nothing unusual about big firms making donations to political candidates, but one might argue that it is a little bit unseemly when the beneficiary of those donations is handing out free experience to those firms.  But that's just my opinion.

Ironically, as Kim Ogg was outsourcing the experience that is gained in the Justice of the Peace Division, one of her high-level prosecutors, Alex Forrest, was getting raked over the coals for failing to comply with his duty to turn over exculpatory Brady evidence in the high-profile case against Arkema, Inc.   I like Alex as a person, but he jumped to being the Bureau Chief of Environmental as one of Kim Ogg's handpicked hires when she took office in 2017.   He skipped all of those priceless opportunities to gain experience and knowledge by going directly to the top of the ladder.

Coincidentally, Alex Forrest was a contributor to Ogg's campaign, as well. 

I would like to wrap this up by saying a sincere thank you to Judge Doug Shaver for imparting that valuable lesson to me back in 1997.  I may not have agreed with the advice at the time of delivery, but I ended up following it.  You were 100% correct.

You can't put a price tag on that type of experience.

Unless you are Kim Ogg, that is.


Anonymous said…
I agree with Murray

This would be like the Astros giving up their class A affiliate.

The HCDAO system of rotating prosecutors through various divisions is great at gettting lawyers a broad range of experience and thereby making them better lawyers in my opinion.

Time in the JP Division also requires them to deal with the general public, who are probably usually without a lawyer. I think this forces them to recognize the human side and effects of what they do,

Travelling to the various jp courts also may require them to go to parts of the county and see things and meet people they otherwise would not and thus be more aware of the community they serve.

These are experiences they can take back to county and district court that will help them be better people and lawyers - in learning how to try cases, work with civilian witnesses, empathy for defendants and witnesses, etc. etc.

This is almost as misguided, in my opinion, as separating the trial lawyers from intake such that lawyers from the trial bureaus etc. who had trial experience and perspective hopefully screen cases more effectively are no longer working intake. (Others can explain this in more detail if they wish for lay people).
Jigmeister said…
I still fondly remember some of the the cases I tried in JP. They were fun, probably because they didn’t have much significance. In the late 70s and early 80s there was no JP division. The county 3s and 2s went once a week to wherever there was a trial docket. Usually the judges weren’t much more experienced than we were and most of the cases were tried without a lawyer on the other side. But it got Me out of the office for an afternoon and I met some interesting people. Hell I remember some of those cases better than others I tried 20 years later as a division chief. In those days the office spent time making sure than everyone was trained and you didn’t start anywhere but misdemeanor.
Anonymous said…
Alex Forrest was not qualified and not prepared for the position of Bureau Chief. Being a Bureau Chief was a title that was earned by prosecutors that worked their way up the ladder, having tried numerous cases, and been assigned to various divisions. After many years of hard work, only a handful of prosecutors attained that title. Kim essentially made a mockery of the Bureau Chief position by hiring people that had no experience as prosecutors and giving them these highly coveted positions. Alex, while he may be a nice person, never earned that title, and I hope he now realizes, as should Ogg, why that position should be one that is truly earned and not just gifted because of political contributions.
Anonymous said…
I can't imagine not having have tried misdemeanors before trying felonies. I was assigned to a misdemeanor court when I first started but I would have loved to get my feet wet trying jp cases first.
Tom said…
It's fairly common for municipal courts to do exactly what the HCDAO is doing in JP courts. Some years ago, I had a case set for trial in Houston municipal court and the "assistant city attorney" was in fact a baby associate for Baker Botts. My friend Trish Nasworthy, a former Harris County assistant DA, now is chief municipal prosecutor for Grand Prairie regularly gets awards for mentoring big firm lawyers assigned to try cases in her courts.
While baby assistant DAs may have fun trying JP cases and may even learn someting, the DA's office has limited resources.
Anyone who doesn't think that number threes in both felony and misdemeanor courts aren't greatly overworked is smoking funny cigarettes. This process augments the available prosecutors to try JP cases at no cost to the county. It frees up regular county employees to work in other courts and reduce the workload.
Assistant DAs trying JP court cases alone usually have little or no experience. They usually are there alone. And, a lot of the JPs I've been around don't know squat about trying cases. And it's all because no one but the county treasurer really cares about the outcome of the cases.
Anonymous said…
Psst...hey, wanna get your case dismissed? Hire my law firm...we handle both the prosecution and the defense in JP cases...guaranteed dismissal
Anonymous said…
You can't staff a JP section when no one wants to work for your office.
Anonymous said…
The four participating law firms don't defend traffic cases.
Anonymous said…
I filed a public nuisance complaint in JP 3-1 back around ‘89. Devon Ward (Anderson) prosecuted (and won) the jury trial.
Anonymous said…
Having watched many of the ADA's currently employed at the HCDAO's office, it's my opinion that most of them should serve a few rotations in those JP courts, including those chiefs and higher level hacks that were never very good at trial on either side of the bench, or as administrators for that matter. The idea of using private firm personnel to supplement staff is not new but it is just as poor an idea now as it ever was, and those who think defendants can't influence cases by having hired the firm said staffers come from on other cases is just spinning the reality of the situation.

The fact is, ADA's have ALWAYS been "overworked" but in this case they are being overworked courtesy of the policies the DA has adopted as much as anything else. She wastes personnel on pet projects as badly as she shorts funds on new prosecutors to enrich her "established" friends with higher compensation, both political parties unwilling to rally behind her demands for great sums of money because she has been unwilling or unable to justify their worth, notable for how cooked the books were in a recent request.

As far as the city of Houston's experiments with using law firms to supplement their prosecution crew, it has failed repeatedly. When they tried it back in the early 2000's, many were afraid to try a case, others dismissed far more than expected because they admitted that they believed the cases to be a waste of their precious time, and despite being sold as "the best of the best" because they were hired by the big law firms, they wouldn't take advice from either side which often translated into defense counsel being stuck in municipal court for hours more than necessary waiting for them to figure things out. Even the city bean counters who initially praised the move as fiscally conservative decided that it was a bad idea but for the DA's office, it's more about the loss of valuable experience being handed away than the penny wise, pound foolish approach some have adopted.

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