Transcript

Roy Ferguson: When the ADR section of the CPRC was created, the very first enactment of that section of the CPRC, the first chapter is special judging, and yet, the first question I get is, is this new? Is this in the recent legislative session? No, it’s the oldest form of ADR that Texas statutes recognize.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now here’s your host, Attorney Holly Draper.

Holly Draper: Today, I’m very excited to welcome Judge Roy Ferguson as our guest on the Texas Family Law Insiders podcast. Judge Ferguson presided over a five-county court of general jurisdiction in far west Texas for 12 years, retiring from the bench in 2024. During his tenure, he never had a judgment or verdict reversed. And I have to say, as an appellate lawyer, that is a shocking stat to me.

Today, Judge Ferguson serves as a private judge and arbitrator. He’s active in the Family Law Council for the State Bar of Texas, chairing the Judicial Committee and serving on the Executive Committee. He regularly speaks at CLE seminars, and has a long list of awards and accolades. Notably, Judge Ferguson was the presiding judge of the infamous I am not a cat viral Zoom hearing during the covid 19 pandemic, which I’m sure nobody is ever going to forget. So thank you so much for joining us today.

Roy: Thank you for having me. Good morning.

Holly: So why don’t you start and give us just a little bit of information about your background.

Roy: I think you summed it up pretty well. I was a lawyer for just under 20 years when I took the bench. I took the bench at the ripe old age of 44. I retired at 56. Don’t adjust your set. I am 56 years old, it’s true. And I lived out there in the middle of nowhere. Actually, it’s the outskirts of nowhere in the Big Bend in the only town of Texas that’s a mile high, which is Fort Davis.

And so when I decided not to run for a fourth term because I was spending more time in Austin than I was in West Texas, it felt like, then I went ahead and just opened up a private judging and arbitration practice in family and civil, and then I visit on special needs when they asked me to.

I don’t ride the visiting circuit like some of the retired judges do, but as a former judge, I make myself available if they need me for a particular case or hearing. I’m excited to be here and talking to you. I feel like I should be interviewing you. You have such a storied and successful history in family law, I just want to hear all your stories. But I guess we’ll do that next time.

Holly: Yes, maybe we’ll, if you’re going to Advanced this year, maybe I’ll see you there and I can tell you my stories.

Roy: I’ll be there. I’ll be there.

Holly: So right out of the gates, I would, you know, people would be upset with me if I didn’t talk about the cat hearing. So I was very surprised. I was out to happy hour with my team earlier this week, and there were people who didn’t know what I was talking about when I mentioned that the I am not a cat Zoom hearing. So for anybody out there who maybe hasn’t heard of it, can you just give a little brief synopsis of what happened?

Roy: Sure, so I was holding a remote civil docket. And the way that I do dockets is I run little mini dockets. So instead of having a cattle call with 80 people in the waiting room at nine o’clock. I do these little hearings where people show up on the hour, and they’re out by the end of the hour. So we tried to minimize wait time and wasted time.

And so I was getting ready for my 11 o’clock docket, and as I call the case, I admit the lawyers and the parties, one case at a time. And so I called a civil forfeiture case, and when I admitted everyone, in came someone who appeared on camera as the cat that we’ve all seen, the little fluffy white kitten, which looks a little something like this. Can you see it? It’s a reflection, right?

So my camera was off, my microphone was muted, and I sat there, and I watched the cat turn and talk. I couldn’t hear anything, but it went on for over two minutes of this person stuck, clearly trying very hard to get out of it. Now, the most common question I get is, how did you not laugh?

Holly: Exactly! That’s one of the things I was going to ask.

Roy: Because for two minutes I sat and watched this happen and got it all out of my system. And I spent that whole two minutes doing this as fast as I could, texting every judge I knew to turn on my live stream right now, and so the live stream went from 30 people to hundreds of people in a span of about two minutes as all of the lawyers and judges logged on to my live stream.

And finally, when everyone was composed and I realized he was not going to either exit or get this fixed, I went ahead and unmuted, and then that’s when I started. I clipped the video right there, and I tried to walk him through it. The original video stops before I come on camera. And the funny thing is, I had 1700 Twitter followers.

I didn’t think anyone was going to see it, just this niche group of Twitter lawyers, right? But I thought, you know, I just don’t know that I want my face in this little snippet of a video, because I don’t want anyone to think it’s I’m trying to make it about me. So I stopped it before I came on camera. If you go on my Twitter feed now, or on my blue sky pinned to the top, is the end of the video, which is where I come on camera, and I walk him through turning it off.

And he gets it turned off in about five seconds when I tell him how to do it, face to face. He was just in a panic. You can see they didn’t know what they were doing. So, I came on camera and I locked eyes with him, with the cat, I should say, and told him how to turn him off. And in five seconds, it was over. And all I said was, well, there you go. Let’s start our hearing. And he said, Thank you, Judge, and we had our hearing as if nothing had happened.

I snipped the video at about 11:40. I sent it to two of my most trusted judicial friends and advisors and said, do you think I should post this? Both of them said, don’t do it. So, of course, I did. I posted it anyway, and it went viral within a couple of minutes. I think it had 32,000 shares within 30 minutes. And it ended up with a calculated reach, reach is people, not views of just around 3 billion.

Holly: 3 billion!

Roy: So 40 plus percent of the planet was exposed to it in some way, whether it’s local news. In some countries, a screenshot was on the front page of their newspaper.

Holly: Wow!

Roy: I can’t figure that out, but that’s how it was introduced to some places in the world. So it shut down my office, my email, my phone, my voicemail, everything overloaded. We got hundreds of calls for interviews, which I did five total. That’s it. I rejected all the rest and sent them to the lawyer cat himself. And you know, you don’t choose your legacy.

Your legacy chooses you, and this is going to be mine, and so you just have to embrace it. It doesn’t do any good to fight back. It gave so many people just a moment of joy in what was one of the worst days in a long time with the pandemic. And at 11 o’clock, it was the kickoff of the second impeachment of the president.

That trial started at 11 o’clock. I released this just before noon, and it was the top story over the impeachment in a lot of different news settings. So it really, I think that’s one of the reasons that it did what it did worldwide, was it was such a terrible time and the world was just holding its collective breath that the whole world laughed at once over a silly little hearing video.

So that’s really the synopsis in, I guess, two minutes of the lawyer cat experience. It’s every time I’m introduced, I speak 30 times a year at different CLE or CJE, every single time, either they introduce me with it, or when I open the floor to questions, the first question is, would you show us the lawyer cat video, please? So I always have it queued up and ready to go.

Holly: I’ll have to my podcast company and say, can you splice in that video so everybody can see it?

Roy: I’m sure they can.

Holly: Yeah, if anybody hasn’t seen it. Just Google I am not a cat Zoom hearing and you’ll find it, and it will give you just a little bit of joy in your day. But anyway, that’s not really what we’re here to talk about today. We are going to talk about the more serious legal issues of private judges and arbitration as options in family law cases. So I think it’s pretty recent, at least for me to have heard about private judges. I think it is not very widely done, and a lot of people don’t even know about it. So, what is a private judge?

Roy: It is so amazing to me. I hear that statement first in most conversations that I have about special judges. When the ADR section of the CPRC was created, the very first enactment of that section of the CPRC, the first chapter, is special judging. It’s chapter 151 of the civil practices and remedies code. It’s the first chapter of the ADR section in Texas civil law.

It has been around from the beginning of the enactment of the ADR statute, and yet, the first question I get is, is this new? Is this in the recent legislative session? No, it’s the oldest form of ADR that Texas statutes recognize. It is a non-mandatory version of ADR. So, for example, arbitration, if you have an arbitration agreement, it is mandatory on the court.

It’s binding on the court. We have to send you to arbitration if you have a binding arbitration agreement. Texas Supreme Court, as you know, has made crystal clear, absolutely, if you have a valid ADR agreement, you’re going to arbitration. This is different from that. This is discretionary for the court. So what happens is the parties come to an agreement as to who they want to preside over their case.

It has to be someone with at least four years’ experience as a district judge, and they have to have recognized expertise in the area of law that is involved in the case. You couldn’t use a former criminal court judge to handle a family law matter as a special judge. They wouldn’t qualify under the statute.

So once an agreement is reached, a motion is filed, and we have a form of that on my website that explains this to the judges, because the judges don’t know either. No one seems to really be fully aware of what this is. We’re sort of teaching everyone at once. If they sign it, then the case basically moves to the special judge that you have agreed upon for whatever purposes you designated.

You can do it just for temp orders. You could do it for dispositive motions or discovery motions, or you can do it for the whole case, including post-judgment motions. It’s up to the lawyers. Once that happens, the elected judge, the presiding judge, that case is stayed. They can do nothing. It is not their case anymore. It moves out to the special judge. Special judge then does everything as if it had been a recusal and an assignment of a visiting judge.

That’s the best way to think of it. Is it’s not an arbitration where it’s different rules. Doesn’t have to be an actual judge to preside over an arbitration, and we’ll talk about that in a minute, but it’s the same as if the judge you chose just moves into the seat of the presiding judge that was elected and caught the case.

The differences there are there’s no jury with a special judge because you can’t be in the courthouse. That’s why we call it private judging. It’s actually called special judge, and we don’t really like the sound of that anyway, because we don’t think we’re special. We’re just being a judge. It’s a private judge because it is a private trial.

No audience, no press, no live streaming, no courthouse. It is done in a private setting that is selected by the parties and the judge. It could be a lawyer’s office, it could be a mediator’s office, it could be a hotel conference room. Doesn’t matter, so long as there’s no audience permitted to watch, no live streaming. It is a private scenario.

Now you can see why that is so great in family law, where it’s so personal and people are revealing their really their greatest betrayals. Sometimes it is, let’s just say, maybe someone did something they don’t want people to know about that led to the divorce, and they really don’t feel like their whole community knowing what they did. Sometimes it is high-value, large estate cases, and they really don’t want the world knowing what they’re worth or what all they own.

So there are a lot of reasons why someone might, or celebrities, sports figures, for example, they don’t want the world following along. One of the oddities, and you probably feel the same way about this era we’re in, is that the public is fascinated by trials. They fixate on some random trial somewhere, and people watch it all day, which is great. They learn a lot.

But the whole country watches the trial every day, if it’s being live-streamed. And so this is a way to avoid that kind of scrutiny and public embarrassment, particularly for famous people. I would just say celebrity figures, politicians, gets it out of the public. So I’m kind of rambling on about it. It was a very big question, but once the case is done, the special judge signs a judgment.

It’s actually called a verdict, for some reason in the statute, but it’s a judgment or a decree. That becomes the verdict of the referring court. There is no asking the judge to approve it. The presiding judge. There’s no request for approval. There’s no review for best interest, which in an arbitration, if you arbitrate and there are SAPCR issues, it goes back to the referring judge and they have to do a best interest review.

And if they don’t feel it’s in the child’s best interest, they can reject it and send you back and make you arbitrate again. When I do it as a special judge, my judgment is the judgment of the court. That’s it. No review. The only thing that happens in the referring court is that court signs an order acknowledging that the case is disposed.

The reason you do that is because Chapter 151 says that the appeal is triggered by the referring court’s order, and that’s the order that triggers the appeal. So that’s really the basics of how it works. I can tell you, if you, do you want to ask me another question to break this up?

Holly: Yeah, let’s back up just a little bit, and kind of go through a couple of things that you talked about a little bit more in depth. So first, private judge and special judge, those are the same thing. We can use those terms interchangeably. No difference.

Roy: Correct.

Holly: Okay, so, I thought it was interesting talking about it seems obvious celebrities or politicians or people like that, where they really don’t want to have their business out there in a public courtroom, but for years as a family lawyer, many times the motivation to settle is you can’t go up on the stand and talk about this stuff.

Or somebody really doesn’t, you know, maybe it’s the other side, but they really don’t want to have to go on the stand and talk about this stuff. So for people who have the means to have a private judge, it might a little bit reduce the incentive to settle for what could be a bad deal, because they don’t actually have to go into the public courtroom. Do you think that’s true?

Roy: So that raises an interesting issue for me. There are many scenarios where people say, but if, for example, we do a remote hearing that doesn’t force people to settle in the hall, for example. Then it raises two issues. Number one, it’s a cost versus benefit analysis. If you have to bring all the lawyers to court, show up at nine, wait for four hours to get your hearing, and then maybe you’ll settle in the hallway.

That, to me, is a very expensive leverage for judges to force on people. I do not perceive my job as trying to force settlement. If you could have settled, you would have done it already. That’s not my role when I’m in the role as Judge. If you want me to mediate your case, that’s a different scenario.

But my job is to get your case disposed as quickly as possible, with a lean towards the public policy in Texas of promoting amicable resolution and working together for the benefit of children. I had heard it suggest that we should abandon the opportunity for lawyers to use remote proceedings to save cost for that very purpose.

And I simply disagree with that as being a goal of the judge, a job of the judge to force the parties into a negative situation where they settle not out of the best interest of the child or their own best interest in a just and right division, but because they’re afraid of what might happen. I feel the same way. I was a general jurisdiction judge, and I handled felony criminal cases.

There is something in criminal law called an Alford plea. A, L, F, O, R, D. An Alford plea is a defendant who claims his innocence but is permitted to plead guilty and is convicted by the court because they are afraid that they might get convicted wrongly and therefore punished for something they didn’t do. Okay? In my mind, that is a condemnation of our system.

That someone who is innocent is willing to make themselves a felon and be convicted of something they did not do out of fear that the system will fail. I’m in 12 years, did not accept a single Alford plea. I would never convict someone who claimed they were innocent. That’s what our system exists to handle. We don’t have trials for people who admit their guilt.

We have trials for people who say they are not guilty, and we go to trial. So to me, there’s a similar feeling here of why would I reject a system that is, it is a method of alternative dispute resolution. It gives them the judge that they want. It gives them freedom from the time limits, 20 minutes per side. In some counties, 30 minutes per side.

Some counties, for a jury trial, will give you two hours per side. It frees you from that. Gives you the time that you need and the protection you need. If you’re going to settle, I trust that the lawyers like you are going to advise their client in a way that a good settlement is reached. Not because they’re being forced into taking a deal that they don’t think is good for them, because they don’t want to be humiliated in public in the courthouse.

Holly: So does the referring court have to approve an agreement of if the parties want to use a presiding or a private judge?

Roy: They do not. It is as the statute reads and has read, it is may. It is a discretionary request. It’s an interesting conversation. Why would a judge say no to that? It gets a case off their docket. What I have found, in my experience, just in the last seven months, is that the judges who say no don’t know what it is.

And so one judge actually called me irate when he got the motion in order and said, this is forum shopping. They can’t come to you. There’s nothing you can do that I can’t do. He’s absolutely right about that, and he had no idea that the statute existed. And so I said, slow, slow and roll there, Judge, hang on. This is my way of helping you get this massive case off your docket.

And once I sent him some information about it, he immediately reversed course and signed the order. He said, I have no idea. This is great. I don’t want to deal with this case. You take right. That kind of concept. So what I did, and if you, if you pulled the order off the website of the motion, you will see that the motion I’ve created for this actually has the history of the statute laid out in the motion.

That is so that the judges who’ve never heard of this don’t react negatively because they think someone’s playing a game in their case. One other thing I want to add, the law has shifted on how judges are evaluated. There has always been the administrative code that tells us judges you need to finish this kind of family law case in six months, and this kind of case in 12 months, and if you have a jury, it’s going to be this many months.

That’s always been there, and no one’s ever cared. It’s been ignored by everyone. Not anymore. Now they’re judging judges based on how much of their caseload is resolved or disposed within those time brackets. And so we’re getting to the point where these big cases that would overload a judge’s docket are really going to cause problems.

Because if you have a two-week jury trial, and it’s a judge like me, where there’s one judge general jurisdiction, you shut the court down for two weeks. So all those other cases are going to have to be put off for a period of time. And I’m going to, I’m going to bog down, right?

And so I think you’re going to see more and more judges, maybe even encouraging special judging for some of the larger cases, multiple claims, maybe multiple parties, where there’s an intervener or there’s a fraud claimed against a corporation that’s brought in, a marital corporation.

You’re going to see judges saying, you know, y’all might want to consider finding a special judge for this, because I don’t have two weeks to give you for 18 months. And so it’s going to fall outside of my statutory window, right? So that really, I think, is the answer to that question. A very long answer to a simple question.

Holly: So if one party wants to use a special judge and the other does not, can a court order it?

Roy: Cannot. It must be by agreement, and the judge, the special judge, must agree to serve before you ask for the order. So everyone has to be on board. All the parties, the special judge, and the presiding judge. Everyone has to say yes.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law appellate representation across Texas. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So does using a special judge remove your case from those time restrictions that the district judge is under, of this case has to be disposed from my docket within a certain amount of time?

Roy: Great question. There is no black and white answer to that. I can tell you that because every setting with the special judge is preferential, then you’re not going to be squeezed into those dockets. My practice is I do not hold them to the time limits that are imposed for docket control purposes. Right?

The policy behind shortened time limits and mandatory mediation before temporary orders hearings and the certain things required to be on submission without oral argument, those local rules exist as a docket managed for courts that have 1000s of cases and they’re trying to get through them all as fast as they can. There is no such motivation for a special judge.

I will give you whatever time you need. I can tell you that I had one of the parties were seeking multiple days for trial, multiple days per side. The presiding judge fairly said, I simply don’t have that for over a year. You’re going to have to wait over a year for your trial? And they called me, and I said, I’ve got that in two weeks. You want to try in two weeks?

Yes, we do. And so it was pulled out and given to the special judge because they could not accommodate it and they couldn’t fairly do justice within the time limits that are laid out in the local rules of that county. So for me, that is one of the great benefits when you have a complex case, or when you have an intervener or something that you cannot do a temp order in 30 minutes, right?

You can’t even question your own client in 30 minutes, and you’re expected to handle property, business, SAPCR issues, maybe family violence issues, maybe interim attorneys’ fees, issues, all in 30 minutes. It’s just impossible to do justice in that way.

Holly: So a lot of the counties where I practice, we do see those strict time limits. So let’s say we’re at the temporary order stage, and we’re going to get 20 minutes aside, and everybody agrees we really need more than that. So why don’t we go to a special judge? We agree to go to the special judge for temp orders.

Probably whoever doesn’t fare well in that temp orders might not want to be with the special judge anymore after that. So does your order have to just say, okay, we’re going temp orders and then we’ll figure out the rest afterwards. Or is it once you get referred over for temp orders, you’re out of the district court forever, and you’re going to the special judge?

Roy: So the statute permits you to do it one of two ways. You can refer an entire case, or you can refer just individual things or categories of things. So, for example, if you wanted to refer temp orders, then what you would do is you would have your order say temporary orders and motions related there too, for example.

So if there’s a motion to reconsider, or a motion for additional temp orders a couple of months later, that would still be included within that prior order. Because you want to avoid the retrial. You want to avoid the second bite at the apple, just as if it were with the referring court. Remember one of the goals is to save money and to get certainty in your rulings.

So you could craft it to say just for the temporary orders hearing and nothing else, if you wanted to. But remember, the order of the special judge is the referring judge’s order. So it would have to meet the standards for a modification of temp orders or for additional temp orders. But really the beauty of it is the flexibility. It puts all of the power in the hands of the lawyers to decide what they want to be heard.

And the flip side is, if you said just temp orders, and you were so happy with the way that went, you could just do a second order or an amended order and do the rest of the case. You can do trial but not post-trial motions if you wanted to. So the referring court handles the motion for new trial. I don’t know why you would want to do that, but you have that kind of flexibility.

Holly: So you mentioned one of the goals, or reasons people might do it is to save money. It’s a little counterintuitive to me, because I think of going to a private judge is going to cost more money because the parties now have to pay for that judge. They might have to pay for a court reporter they wouldn’t have to otherwise pay for. Might have to pay for a location, a number of costs that you wouldn’t have going to the regular district judge or the courthouse. So how does that actually save some people money?

Roy: The studies that we have done, we’ve evaluated cases, it is almost always not just a savings, but a significant savings, depending on where you are, okay. Setting aside the fact that you’re getting higher quality justice sometimes if you can present all of your case and your client, I think it helps you get settlement later, if your client feels they’ve thoroughly been heard and then gotten a ruling, as opposed to having to sit and watch the lawyer proffer for 20 minutes and then saying, well, they never even heard from me.

That wasn’t fair. Let’s put all of that aside. How many times have you shown up to record at nine o’clock, witnesses ready to go, everybody’s there, and then you wait. And everybody waits out in the hall. You wait until you finally get your opportunity. Maybe it’s that day. Maybe it’s not. Maybe you get bumped, or maybe they tell you we’re going to give you from 1:30 to 5:00, and then at two o’clock there’s an emergency that comes in, and so you have to wait while the judge handles the emergency.

And then they’ve got another meeting that’s come up, and you end up getting an hour and a half, and you roll to another day. It provides certainty through preferential settings, and it eliminates downtime. And that’s where we saw the biggest savings in the cases we evaluated. We looked at cases from different cities, the major areas, Dallas, you know, Collin County, San Antonio, and Houston.

And we would see the stacking of cases on dockets. You show up, but don’t know if you’re going to go. Sometimes you’re sixth on the list, right? If you make the mistake of not preparing because you’re six, you might actually go. And then it’s old school ambush style, but it eliminates downtime. And one of the cases we evaluated, everyone showed up, two lawyers per side, and they waited, waited, waited, waited.

They didn’t get, gotten to, I don’t know how you say that that day. They had to come back. They didn’t get it the second date either. And now it’s come back in a week or week and a half, when we have time for this again. They ended up spending 10s of 1000s of dollars just sitting doing nothing with witnesses, taking days off of work, and waiting in the hall or sitting downstairs in the cafeteria and never getting their case resolved.

And after those three settings, then they went to a special judge, and it was done in that afternoon. They called and said, Can you do this today? The special judge said, I’m available. And they got it done that day, and by six o’clock they were finished, right? So the elimination of, well, you show up once you hear it once.

There’s no de novo from an AJ, there’s no continuance or bump reset, that’s it. You prepare once and you try it once, and that’s it. And so we have seen significant savings. The cost of the judge sometimes is less than the hourly rate of one lawyer in the case and court reporters. If you were going to get a transcript, you are always going to pay for the transcript. Always.

That’s no different. The question is, do you have to pay someone to sit there? And that cost in a lot of these cases, given what’s at stake is minimal in comparison. So we do see a consistent savings of money when someone goes quickly to the special judge and eliminates the mediation thing is another.

If what you need is quick temp orders, simple, but you got to have a hearing on it, making two lawyers per side go to mediation when you know it can’t possibly settle, just like you remember the athlete that said, I’m only here so I don’t get fined. If the only reason you’re mediating is so you can get a hearing, you’re wasting money.

And the cost of that mediation is more than the cost of the special judge would have been, and you could have tried that on the day that you mediated, rather than waiting then another three weeks after burning money for no reason. Now I’m not anti-mediation at all. Don’t get me wrong, I’m full supportive of parents working out their differences.

A lot of cases, mediations say 80 plus percent of the time. But if the only reason you’re going is because you have to get your trial date, sometimes two or even three times, you’re burning money. Get it resolved, get your clients on with their lives.

Holly: And in addition to the waiting when you get bumped, oftentimes, that can lead to double the prep work. Because if I have prepared for a trial and put in all that work, and now we’re bumped three months down the road, we’re gonna have to do a lot of additional prep because what’s happened between now and then.

Roy: People forget, witnesses have to be repolished. Document discovery might have to be updated again. I hate to put this out there, but people amend their pleadings, and so everything might change. Suddenly, it goes from a JMC request to an SMC request, or they’ve added something that you didn’t know was coming. They might add a fraud claim or attorney’s fees claim or a receivership.

Who knows what can happen in that three-week window. And then you have to request a continuance of trial, because you have to do more discovery, right? And so then the whole thing starts to circle the drain. There’s no question that prompt disposition is best for everyone, and anything that gets you there, I think, is something that people should consider.

Holly: So one other issue I wanted to touch on the private judging is, can you appeal just like you could if the district judge made the ruling?

Roy: That is the big difference with arbitration. Well, let’s just say one of the big differences, obviously the the Rules of Court and the rules of discovery in an arbitration are different. They’re really the arbitrator is just God. They can make you do whatever they want. They can tell you no to discovery. They can tell you what discovery you’re allowed to have.

A special judge discoveries under the rules, same one you do in every case. It’s just like a recusal, remember. So you don’t have to worry about differences. The appellate difference is the key difference, especially for people like you who are appellate rock stars. With an arbitration on SAPCR issues, I mentioned earlier that the court has a best interest review and can send you back to arbitration if they’re not happy.

There is no review by the court of a special judge’s verdict. They just acknowledge it, and it’s done. But arbitrations have such limited appellate rights, and I know for someone like you, I’ll bet when you hear that, it makes the hair on the back your neck stand up. Appealing an arbitration. Isn’t that fun? It’s the best thing for appellate lawyers is trying to appeal an arbitration.

It’s the worst. It’s the worst because it’s so tight a special judge’s verdict, the judgment of the court, is the judgment of the court. It is fully appealable, as with any other judgment. So you have complete appellate rights, because it is no different from if the sitting judge had trial and issued a verdict.

So people like you love when they hear special judge and not arbitration, because it lets you do your job, and it lets the Appellate Court and the Supreme Court do theirs, and that’s why we have it. To make sure that I did it right. They’re up there to make sure that I applied the law correctly.

And I think a system that enables the layers of court that the Constitution has created to do their jobs is a superior system. The one that bypasses all of that and says if the judge screws it up, so long as it’s not arbitrary and capricious, you’re stuck. So the answer to that is yes, full appellate rights.

Holly: So we’re almost out of time, but I did want to briefly touch on arbitration. I know it’s come up a few times already in the conversation, but give us the nutshell version of what is arbitration and how is that different.

Roy: So arbitration is essentially a system where an agreement has been reached that the case is going to be decided by subject matter experts, as opposed to a judge in the court. An arbitration, for example, in Construction Law. An arbitration panel in construction law might have a contractor and a lawyer, and maybe a former judge just to run things because they’re familiar with how to run a case.

But it is, it is intended to be subject matter experts handling things that are disputes in that subject matter area. It is outside of the courthouse and there. Are so many different sets of rules you can apply. There’s a federal set of rules, there’s Texas set of rules. There are even private entities that do arbitration that have their own set of rules, and so the parties can pick which set of rules they want to apply.

Once that’s done, the panel sends a an order recommendation, basically, they make a reasoned decision, which is a ruling with an explanation. It’s the best way to look at it. It’s like having your findings of fact built into your judgment, which trial judges hate to do, but arbitrators have to do. And then that goes back to the referring court, and someone has to ask that court to adopt that reasoned decision as the decision of the court.

And there’s a whole squabble there about, was it fraudulently induced? Was it arbitrary and capricious, these kinds of things. So it is a significantly different situation. Texas has a strong policy in support of arbitration, and those of us who handle appellate issues as you do know that if there’s a question about the validity of an arbitration clause, you’d better bring your a game if you want to get around it, because the Supreme Court has made clear arbitration clauses are favored, and if the contract is valid and the clause is valid, you’re going to arbitration, and there’s almost no way out of it.

It is a strong public policy. Now I do arbitrations as well in civil and family cases. You get quality justice out of arbitration. I don’t want to imply or for anyone to think I’m implying that you don’t. You do. But it is an unfamiliar situation to a lot of lawyers. Lawyers who are are accustomed to the rules of procedure and the rules of evidence and discovery, and they get into an arbitration, and it is a different world.

It might not even be on the record. It’s a very different experience. And so that’s why a lot of people say, well, we do arbitration when we don’t want to be in the courthouse. That’s a choice. But if you want your appellate rights and you want to have a Holly Draper be your appellate lawyer and protect you, arbitration is probably not going to get you there, and has that been your experience as well?

Holly: It has. I think I’ve had, over the course of however many years I’ve been doing appeals. One person that came to me wanting to appeal the ruling from arbitration. And you get down into the weeds of it, and it was like, well, there wasn’t a record. And without a record, we can’t do that. And we can never prove these things unless you have a record.

And, you know, I think about arbitration, and I think, why would you ever do that in a family law case? But then I do see a lot of who I would call high-end family lawyers who advocate in favor of arbitration. And I’ll see a lot of discussions, kind of, you know, Texas family lawyers or whatever, where people are encouraging this or saying that it’s a good idea. Under what circumstances do you think it is a good idea for a family litigant?

Roy: So there are two comparisons there. One is the devil you know versus the devil you don’t scenario. There are people who feel that if they can choose the person, or people with an arbitration panel who are going to make the decision, that they know that at least they have an idea of how to craft their case to present to the panel.

Whereas there may be a judge that they don’t know, or a new judge, or sometimes we have judges who didn’t do family law as a specialty. And I think if you saw the at Advanced family law last year, a lot of us presented from a survey we did of judges and justices and family law lawyers about significant family law issues.

If you haven’t seen it, I recommend you pull it. It’s fascinating. But one of the things we learned was that roughly half of appellate justices and family law judges weren’t family law lawyers. But when they get elected to the bench or the appellate seat, they’re now handling family law cases, and they’ve never handled one in their lives.

So there are people who think it’s better to get in front of someone you know and trust than it is to roll the dice in a court with a judge they don’t know. I’m not advocating for that. I have heard that said to me quite a bit, we don’t know this judge, but we know you, and we trust you, that kind of thing.

The reason people arbitrate instead of private judging is simply because they don’t know private judging exists. It’s that simple. And those high-end cases, what they’re trying to do is get out of the courthouse. Step one, get out of the courthouse. They have always believed arbitration is the way to do that, and what we’re seeing now, just in the last couple of years, is a transition as arbitration cases are coming down and special judging cases are coming up.

They have not passed yet. But I’m telling you that shift is being made. And because arbitration is required by contract, there are people who have modifications that may have to go to arbitration because they put it in their MSA. So they’re locked into that already. And I think as private judging becomes better known, and people see that it might actually be preferential in many ways to arbitration.

I think you’re going to see that start finding its way into MSAs as opposed to arbitration of those issues. So there’s logic to trying to get out of the courthouse for many different reasons. Arbitration has always been the go-to to and I think it’s time for that shift to occur, especially, particularly in family. Yeah, I can’t

Holly: I can’t think of any circumstance when I would advise a client that arbitration was a good idea in a family law case, but I definitely can think of a lot of circumstances where a private judge would be a good idea. So we’re basically out of time, but I do have one question I like to ask everyone who comes on the podcast. And that is, if you could give one piece of advice to young family lawyers, what would it be?

Roy: So here’s my advice for young family lawyers. Your job is not to validate everything you hear from your client. Okay? Your job is to listen critically and to evaluate what your client is telling you. The reason I say that is over my 30 years of doing family law, I have seen many young lawyers come in and they are as emotionally invested as their client, and if their client told them something, then that’s gospel.

They don’t evaluate it, they don’t challenge it. They just take it to heart, and they go in and they shake their fists and get angry, and they mirror the emotions of their client. And I’m sure this has never happened to you, but sometimes the way clients describe things could be seen through the eyes of their experience and their emotion, as opposed to the factual third-party eye that the judge provides.

And that’s how these young lawyers get surprised by outcomes. They get surprised by cross-examination of their clients sometimes. They get embarrassed. They feel embarrassed. They don’t get embarrassed. They feel embarrassment based on what happens in the courtroom. And it can be devastating. And I have seen young lawyers sitting on the courthouse steps sobbing after a hearing, and I can tell you one little story.

There was one lawyer where that was happening, and so I invited her with my coordinator to come back up into my office. And I was trying to soothe her feelings, and I said, why are you so devastated? And she said, because I believed my client. It had really been an awful hearing, and her client had been really exposed by documents from the other side, and just the case was over at this point, by the way.

This was after. And she was devastated, and she said, I’m humiliated and I’m devastated, and I really believed my client, and I’m not sure I want to do family law anymore. And the response to that is start early, listening critically. Be sympathetic. I don’t know if you want to be empathetic, but certainly be sympathetic, but you need to be listening with the ear that the judge is going to hear with.

And remember what your role is, because if you take on the emotions of every one of your family law clients, you’re not going to sleep at night. You’re going to bring that into your personal life, your relationships. It is too much weight to carry the full emotion of every family law client. My suggestion, and you may disagree with me on this is that is an unhealthy and self-destructive way to live.

Holly: Oh, 100 percent.

Roy: If you have 75 clients. A human cannot bear that amount of grief and anger and emotion and suffering day after day for an entire career. So that’s really my advice. The best way to help these people you desperately want to help is to do your job. Don’t become their emotional mirror in the courtroom, because it won’t help them and it will hurt you.

Holly: I often compare it to doctors when I’m trying to explain to a younger lawyer like you can’t take these things so personally, but you have to care. Otherwise, why are you doing it if you don’t care, but you can’t care too much otherwise, you can’t continue to help other people.

Roy: You can’t care so much that you get an unjust outcome on behalf of your client. There’s no amount of care that will cross that threshold. So seeking justice on behalf of your client, as opposed to seeking retribution that your client may want, for example, requires a calming influence, a dispassionate view of the facts and application to the law, and then you get to do that thing that we call ourselves and often don’t do, and that is, you get to be a counselor.

That’s why they call us that sometimes, is you have to counsel your client, help them get through these emotions, but see the reality. Get them focused back on, for example, the best interest of the child, because the court is not going to do something with respect to the child just because you’re upset.

We’re going to do it because that’s what’s in the child’s best interest. And that is also a hard lesson for them to learn. This could be our whole podcast, and we could talk about advising young family law lawyers how not to burn out and be self-destructive. But I agree with you there.

It is a hard lesson to learn when you’re so young and eager and you feel like if you win a hearing, you won a hearing. And if your client loses the hearing, you lost the hearing. And that is, in fact, not the case. We appreciate the presentation, but our job from the bench is to do what’s right for the family and the child, and that’s our focus.

Not did you do a better job as a lawyer? You could be the best lawyer in a hearing by a factor of 10, but the just outcome is that your client doesn’t get what you’re asking us for. And we may say the phrase that you hate to hear, your lawyer did a great job today, and that usually means.

Holly: I like to hear that. I like to hear that phrase.

Roy: I’ve heard lawyers say as soon as the judge says, counsel, I appreciate your argument. You’ve made a great argument. They close their binder because they know they’re about to hear a losing announcement. So, personalizing the case, thinking that if your client didn’t get what they wanted, you lost. I’ve had lawyers say to me, what could I have done? Have a different client?

I mean, the scenario, the facts are what they are, and that’s what we rule based on, not who we like more. I ruled against my friends just as often as I ruled for people I don’t like. It doesn’t connect that way, and that’s a hard lesson to learn when you want to be the best. The best lawyer in the courthouse. That doesn’t always translate to winning every case.

Holly: So I think we can wrap it up right there. But where can our listeners go if they want to learn more about you?

Roy: Judgeroyferguson.com. That is my professional website. It has an explanation, a dispassionate, non-sales-pitchy explanation of all the options we talked about with arbitration and special judging and even some other options from that same section that no one knows exists. The reason I say that is I didn’t know they existed until I started reading it. Just cover to cover for fun. My gosh, I never heard of this.

Holly: You might need a hobby.

Roy: That’s a story for another day. But yeah, I have explained the things I do for fun and the looks on people’s faces are just awful. Reading the family code cover to cover, just because there’s stuff in it, you forget is there, and people think I’m insane. But so there’s a calendar there.

You can see availability, and I do put the motions and orders for arbitration and private judging and all those things up for people. So they can use it to hire me. They can use it to hire anyone, and lawyers can use it as a form if they wish to do so. There’s a lot of information at judgeroyferguson.com for people to use.

Holly: Perfect. Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast, please take a second to leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.