Transcript

​​Holly Draper: That’s really the key to preparing for oral argument, is figuring out every possible question you think those justices might ask you and coming up with the absolute best response, short, succinct to the point, that you can.

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: Hi everyone. Welcome to the Texas Family Law Insiders podcast, this is Holly Draper, and I’m here today to talk with you a little bit about my Texas Supreme Court case of Stary v. Ethridge. We just had our oral argument in the Texas Supreme Court on October 29th.

It actually didn’t occur at the Texas Supreme Court. It occurred at the University of Houston. The court goes on tour so to speak a couple times a year, usually to law schools, to give other people an opportunity to witness the proceedings and see how the court functions.

And it was a really great there were probably a couple 100 people there. I assume most of them were law students, and we had some media there. It was, overall, a really amazing day, an amazing event. I know a lot of people had questions about what goes into oral argument, and so we’re going to talk about that and how we prep for it and also debrief a little bit on what actually happened during our oral argument and where it goes from here.

So first, I’ll talk a little bit about the process of getting to oral argument in the Texas Supreme Court. So in the court of appeals, the court has to take your appeal. So if you go on trial court and you lose, and you file an appeal to the court of appeals, you are going to get an opinion one way or another. They are going to make a substantive decision about what happened in your trial court case, and it is either going to be affirmed or reversed.

With the Texas Supreme Court, they do not have to take your case. They have almost complete discretion, I think, complete discretion over what cases they are actually going to consider. There are over 1000 people that file a petition for review in the Supreme Court every year, and only about 100 of those have the petition granted.

So having the petition granted means that they are taking your case. It doesn’t mean that they’re agreeing with your opinion necessarily. It just means that they are going to consider your case. You may or may or may not get oral argument, depending on what the issues are and whether the court believes it is necessary. But in our case, we were granted oral argument.

So a little bit of what do you do, then, once you have oral arguments. So in our particular case, I was going to do, normally, you get 20 minutes per side. So as the petitioner, you would reserve, typically five minutes for rebuttal. So that leaves you with 15 minutes for your initial argument. Here, and actually, the same thing happened for me in CJC, which was my other Texas Supreme Court case, we had a couple of amicus briefs filed by various groups in this particular case, groups who have a lot of concern about protecting parental rights.

So we decided to share five minutes of my time with one of our Amicus groups because they had really good arguments, and because former Texas Supreme Court Justice Eva Guzman, was going to be using those five minutes to argue, so I thought that would be an excellent opportunity to learn from someone with an amazing resume and tons of experience with this court, and also put before the courts a little bit different perspective on why we should win in this case.

So in the time leading up to oral argument, you have to decide, what am I going to focus on during these, and in this particular case I’m gonna have 10 minutes, she was gonna have five minutes, and then I was gonna have five minutes for rebuttal. So the rebuttal presumably would be going after some issues that were raised when the other side was making their arguments.

So we’re really focusing, for me, on the 10-minute argument, and for Justice Guzman, we were focusing on the five-minute argument. So in order to prepare, it takes a shocking amount of work and time to hone in on where are you going to go with this argument. With these precious few minutes that you have before the court, to convince them that they should take, rule in your favor now that they have taken your case.

So we started out just reviewing all of the briefs that were filed. This case is a little interesting, because the respondent, the father, never bothered to file any sort of response. Didn’t respond in the court of appeals, didn’t respond in the Texas Supreme Court, and the court really wants to have every side of an issue briefed before they can weigh in on it. And they kept giving him a chance. You know, hey buddy, we really want your reply. Okay, crickets.

No, we meant it. We’re gonna give you more time. Dragged on for quite a while of trying to get him to respond, he never did. So the court ultimately asked the appellate section of the State Bar to appoint an amicus attorney to defend the majority of appeals opinion. So they did that before we got to the full briefing stage so that both sides of the issue would be fully briefed.

Even though so there’s not a respondent’s brief in this case, but the amicus brief on the merits goes into all the issues that the respondent would likely raise had he participated fully in this process. So there were also a couple of, I think we had one amicus brief filed on the respondent side, two amicus briefs filed on our side.

So we’re looking at five total briefs. And when I first started my going back, reviewing all those briefs, seeing what all the arguments were made against us. I reviewed the majority opinion from the Court of Appeals and the dissent to see what possible questions the court might ask us. What are our areas of weakness?

The majority opinion from the Court of Appeals really relied heavily on the fact that our client retained, quote, some rights, and therefore this was not a termination of parental rights. And so they ruled against us. So we knew that that was one big area that would be focused on. So over the course of many hours, I reviewed the record again, dove into the little details of what can we use for an oral argument, and what are the questions that the court is going to ask us?

So then we had a team of attorneys between us and the amicus groups on our side. We had a couple of Zoom strategy sessions where we talked about, where do we want to focus. What questions do we think are going to be asked of us, and how are we going to answer those questions? That’s really the key to preparing for oral argument, is figuring out every possible question you think those justices might ask you, and coming up with that absolute best response, short, succinct to the point that you can.

So it was really interesting process over the course of maybe four to six weeks in prepping for oral argument, to see how our strategy changed. It was sort of like a winding road of where we started to get to where we landed. And I really didn’t land where we landed for oral argument until the Sunday morning, two days before oral argument.

So two weeks before oral argument, we had a moot court down in Houston. Justice Guzman had us come to her office, and I had a lot of several great family law attorneys and appellate attorneys who volunteered to read through the briefs and do what’s called a moot court.

So they mooted me and, you know, firing questions, brainstorming ideas. How are we going to deal with these difficult questions? Would they come up in court? Because a lot of them we knew were going to come up in court, and we had to be ready to defend that.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by The Draper Law Firm, providing family law litigation in Collin, Denton, and Dallas counties and appeals across Texas. The Draper Firm has represented parents in cases before multiple courts of appeals and prevailed in the Texas Supreme Court in one of the biggest parental rights cases in Texas history. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So we did that first round, then we did a second moot with a smaller group, but some of the same people, and one or two new ones the week before oral argument, where we ran through our presentations and answered as many questions. And kind of got stuck on another issue of, how do we deal with this. This is a really hard question.

In the moot court, somebody asked the question, and I just, I didn’t even try. I was like, look, guys, I am going to need your help. I don’t have any idea how to answer this question. We have got to figure itself. So then between the five or six of us that were on the call, we bounced ideas around each other.

And when you are a lawyer, I know many of you listening are lawyers, that’s who we are usually trying to speak to. You’re probably a legal nerd, like I am, and I gotta say, it’s so fun. Going through those brainstorming sessions and thinking about all the possible ideas for how to prosecute this case and get the justices to where we want them to be at the end of the day. Loved it. Loved every minute of prepping for oral argument for this.

So we’re changing, tweaking, doing all the things to get us where we wanted to be right up until almost the last minute. Sunday morning, I’m on the phone for an hour talking strategy. And hey, what do you think of this idea? I think this solves the problem to get to where we wanna be. So that gets us to our oral arguments.

And if you want to watch it or listen to it, it is on the Supreme Court’s YouTube channel on the October 29th live oral arguments recording. And if you haven’t listened to it already, I’m going to kind of go through a little bit of what I thought the interesting issues were that came out in oral argument.

So I had been advised that I would probably get two minutes out of the gates to speak before they would start asking me questions. That did not happen. I got through about 1/3 of what I had planned to say initially, before the justices started asking me questions, and Justice Lehrmann came right out of the gates with what I would say were the two no brainer, these are the big questions, big topic questions that you’re going to get in this oral argument.

The first one was basically what the Court of Appeals majority opinion said was that, because the mom retains some rights, this is not a termination of parental rights, and therefore we don’t need to apply any heightened standard. So her first question out of the gates was basically, the mother retained all of these rights. How is that not a termination?

So we obviously knew that was coming, because it was very obvious that was going to be one of the topics. So I felt really good about how I answered that. And you know, our focus of the oral argument, because that’s what the majority opinion of the Court of Appeals said. Our focus was that it’s not about all of the parental rights.

If you retain some rights to look at your kid’s report card or talk to the doctor. Those rights are really meaningless. The Texas and Supreme Court case law uses the words care, custody, and control in almost every case discussing parental rights. So we chose to really focus on care, custody, and control.

These are the key rights that you have as a parent, and when those rights are being terminated forever, we have an effective termination of parental rights. And the fact that you can call the doctor and ask how the checkup went last week is not relevant when it talks about an effective termination of parental rights.

One of the justices even brought up during questioning, he said, it really, really seemed clear to me he had all of the justices believe that this was an effective termination. You know, one justice, I believe it was Justice Young, even said, I’m happy to talk to my kid’s dentists, but that is not the same as having a relationship with my children. Getting to actually see and spend time with my children.

So I feel really good about how things went in that particular topic area. I felt like the justices all seemed to be quite on board with this being a de facto termination of parental rights, and that it was permanent and that it was serious. One justice, Justice Blacklock, even brought up during questioning, that he would prefer to spend a couple years in prison as opposed to never seeing his children again. And I think anyone who’s a parent can relate to that.

So it made me really feel good going out of there that the justices seem to understand that. So the second question Justice Lehrmann hit me with right out of the gates was about the ability to modify the protective order, and doesn’t that kind of save this from being a de facto termination? We knew that question was coming as well.

We anticipated there would be a lot of discussion around that issue. It is probably the biggest issue, the biggest problem with our side of the case is defending against that possible modification issue. And we ultimately landed at a place where you know the constitutional violations happened in this initial proceeding.

And once you’ve entered this lifetime protective order, the burden has now shifted to the mother to have to try and claw back those rights, and the ability to modify is pretty limited. If she’d tried to vacate the protective order twice under very specific circumstances, and if she did that and lost that’s it.

You could not get it vacated ever. And modifying it is not vacating it. And really there needs to be a means to vacate something like this if it is going to terminate, effectively, terminate parental rights forever. So those are really the two biggest issues that we knew were going to be issues, they came up right out of the gates. I think it was, it appeared to me that the justices seemed to agree with us.

Really optimistic coming out of oral argument that our points were made. All the work that we did leading up to it was effective, and we had all of the arguments that we needed to have to defend our positions and hopefully get this protective order vacated. The others were discussing remanding it.

I argued very strongly that it should be vacated because the process was so fundamentally flawed in the trial court. I know for anyone that practices in Harris County, I think they’re pretty familiar with this court, and there are a lot of constitutional concerns about what has happened in that court over the years.

So I’m hoping we can get it vacated, if it gets remanded, then I guess we wait and see if the father who couldn’t be bothered to participate in the appellate proceedings decides he’s going to pursue that trial again in the trial court or not. But overall, I couldn’t be happier with how oral argument went.

If you’re watching the oral argument on the Supreme Court’s YouTube channel and you keep going after it’s over, you can see a Q and A with the justices that was involving the law students, or whoever was there that wanted to ask questions. And so I had watched that, and it was really interesting because obviously they couldn’t talk about this case, even though some of the students were trying to ask about it.

But they did give some insight into the process. So the most interesting takeaway I had from that was before you ever get to oral argument, they draw names to see who’s going to write the opinion for the case. So when they are in there for oral argument, they already knew which justice was going to write the opinion, and now going back like, oh, who do we think it was?

Based on the questions that they were asking, I certainly have my theory. Everyone on my team and my husband who also came to watch, we all think it’s the same person. So it’d be really interesting to see at the end of the day if that’s who it is. If you watch the oral argument, keep an eye out for that and leave a comment, and let me know who you think might be writing that opinion. I’d also love to hear your feedback, what you think about this case.

And I truly, truly love handling these types of appeals where we’re talking about constitutional parental rights. So if you happen to have, if you have a case where you think there are constitutional parental rights issues, be it a protective order situation or a nonparent versus parent custody case, CJC issues, I’m always happy to talk to attorneys and bounce ideas around.

And, if you’re looking for someone to handle that appeal with that mandamus, I would love to do it, but this is just such an interesting area of the law to me. I love digging into it, and I am definitely a legal nerd at heart. So anyway, that is my debrief on the Stary v. Ethridge oral argument. Next, we wait now to wait, it’s very anticlimactic.

Based on the Q and A from yesterday or from from after the oral argument, I’m recording this the day after, it sounds like a first draft opinion will be ready in a little over two months. But then you have to see, does whoever wrote that opinion get enough people to sign onto it to make it a majority, or does it become a dissent? Does anybody want to write a concurring opinion because they want to weigh in on some other issues that the majority did not.

We think there might be multiple writings coming out of this to address some issues separately. So that will probably mean it takes longer. I would guess we’re going to get an opinion on this in the spring sometime. But once we do, I will definitely do another podcast episode to talk about the opinion and what happened.

And by the way, if you don’t know about Stary v. Ethridge, I did do a podcast episode on it earlier, several months ago. It’s titled Are Texas Protective Orders Constitutional? So you can go back and find that and get a little bit of background information, if you would like. But anyway, thanks for joining us today, and we look forward to catching you next time.

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.