Editor’s note: On Sept. 19, the Texas Lawyer editorial department hosted a roundtable discussion in Collin County, “Domestic Relations: How to Make Your Case in Family Court.” Panelists included 296th District Judge John Roach Jr., 219th District Judge Scott J. Becker, 366th District Judge Ray Wheless and 397th District Judge Brian Gary. This is the first part of the discussion. The second part will be published in an upcoming issue. The judges’ discussion covered e-filing, domicile restrictions, the enforcement of morality clauses and their thoughts on social media. It has been edited for length and style.
John Council, senior reporter, Texas Lawyer, Dallas: . . . I’m pleased to be in Collin County to talk about the one form of litigation that dominates the civil docket here. That’s family law. The four general jurisdiction judges . . . gathered today spend the majority of their time on the bench dealing with [the] family law bar and their clients. I’m sure they’re all happy to see both with your latest custody-modification pleading. Hopefully, these judges can give us some pointers on how to make those courtroom interactions go a little bit more smoothly. So, from the Collin County bench, we have Judges John Roach Jr., Scott Becker and Ray Wheless, and we have their neighbor in the north, Judge Brian Gary of Grayson County to give us some pointers on how things are done in Sherman. So, without any further ado, I’d like to start off with a matter that I’m sure everybody in this room is still getting used to, and that’s electronic filing. So, I’m going to start with you, Judge Roach. That’s something that you’ve been steeped in for a while. . . . I understand the electronic filing system is essentially a fileless system, but it’s not a paperless system. So, what are some of the kinks that you’ve been running into with the system as it stands?
296th District Judge John Roach Jr., McKinney: Well, we obviously had to implement the system, and we try very much to get your input from the bar and show you demonstrations and stuff. So, as the district clerk goes around and tries to educate you on the system — or your staff — I’d really highly recommend that you do that, so you can get us the feedback. . . . Some of the problems we’re having [are] . . . when you route the paper, how is it going to get to a judge? So, for example, in an emergency TRO, you’re used to typing it all up, running it to the courthouse and trying to find a judge. We’re not going to do that anymore. You’re going to have to file it in the TexFile system. That’s what it’s called: the TexFile system. And then flag it somehow — that it’s an emergency, so it can be sent to the court. And, so, when you arrive at the court, it’ll be in our inbox, if you will, to look at. So, how’s that going to work? And how we’re going to get that back and how we’re going to get you copies of it and serve the people — [these are] kind of the difficulties that we’re having right now in the way we TexFile. Another thing we were having difficulty with [was] conversations about how we’re going to improve service. So, for example, you file a motion, then you can serve the other side through TexFile on an email address, OK. So, it’s kind of like getting a fax confirmation. So, you’ll send [it to] the court through TexFile. You’ll do a courtesy copy to counsel at their email address. And that is going to be service of that motion and all. And you’ll have — as the sending party, you’re going to have a receipt that says when that person received it in their inbox and when they opened it and stuff. And, so, that’s another thing we’re going to look at is [what's] going to be different from the way we do things. So, the court’s going to be able to look at the docket sheet and see when that happened — or TexFile sheet — that’s when it happened. Or, you can even bring in your printout that it served, like you would a fax confirmation sheet. Another thing that we’re dealing with is the cost. It’s going to cost you $2 to file anything every time you file something. So, that’s one of the things that we’re looking at. And another thing we’re looking at is to make the Web search through documents taken from unofficial — You know how you print them out and they say ‘unofficial’? To take that off — and so that’s going to be the — the electronic file is going to be the official document or docket from the court. . . . [T]hose are the types of things that we’re looking at and we need your input on. And that’s just touching the surface of the back-end issues that we’re having as a court system and how to route that and how to do it efficiently. The goal is to make it more efficient, not more burdensome. So, I think, initially, you’re going to find it more burdensome. But, ultimately, we hope that it’s more efficient.
219th District Judge Scott J. Becker, McKinney: One thing that I think they can think of as a kink, as well, is on one of those rare — those TROs when you come in and we’re in a seminar, we’re out, we’re in the middle of a hearing, we can’t get to it for whatever reason. But, now, you can physically walk and find the next judge who is available to take care of that. We have to figure out a way so that I can see your queue and you can see mine and we can all see each other’s queues, if necessary, to be able to cover that.
Roach: We’re actually going to forward it to the bench.
Becker: The next court.
Roach: . . . [W]hen you send it to the queue . . . you’re not going to send it to my queue. You’ll send it to the court coordinator’s queue. Some things I don’t want to see. Sometimes I do. Some things are [an] emergency. Actually, you’ll be sending it to the staff queue, so another court employee, so if the court coordinator is not — the bailiff is going have access to the court’s queue and all. So, if you want to go, ‘Hey, I want to go over to Judge Oldner, Judge Becker or Judge Wheless,’ we’ll forward the paperwork into their emergency-filing queue. Now, that’s different, though, and . . . I had this struggle, too, because I was confused about it — is, when you do TexFile it is not paperless, OK. And, so, I was confused. I thought, ‘Man, when we went to TexFile, that means it’s all paperless. It means you’ve got to send me your orders on TexFile and all that stuff.’ We’re not there yet. And, so, when TexFile rolls out, all that means is you’re going to be filing paperless. You’re going to be filing from your computer directly into the computer at the district clerk’s office. As a matter of fact, now we say we’ve got fax filing. All that means is you’re sitting at a fax. They still take it off the fax machine and scan it in. So, it’s really not a paperless system. TexFile is. And so we’re going to implement that first — I think on Oct. 9 is when we’re going to be implementing that. Then, from Oct. 9 to Jan. 1, , we’re going to be working on how to make the system paperless, OK, because we’re confused about how we do orders. How are you getting orders done and the judge wants to change the order? How does the judge change an order in a PDF? We have to have special software to do that . . . those are [a] two-step process. We do the TexFile first and then go to paperless.
Council: Judge Becker, you tried to become as paperless as possible on your bench. You told me that you have no paper at your bench at all right now. So, what if I come to you, I’ve got an entry of judgment, for example, and I need it to be modified, and I’m sitting right in front of you. What do you do? How do I do that?
Becker: Under the way we have it right now, I have a couple of ways I can deal with it. I’m still learning the TexFile method, as well. But, when you have that, it’s always good to kind of — I would be prepared to come with whatever document you have on the thumb drive, because you can always access it on your device and make the edits right there, and then you can e-mail that document. You can re-file it from the courthouse through the TexFile system. As long as you’re near the Web service, you can probably do that, as well. So, when you have your document, however many pages it is, bring it and have it available on your laptop or your tablet . . . or have it on a thumb drive. And be prepared and go ahead and you can get in there and edit it. Or, if you have it and I said, ‘Yeah, I’m not going to sign it that way. I need to change this.’ Or maybe there was just an error, and you can correct it with a comma where there should be a comma, little things. We can — you can e-mail that document to me, I can make those changes, and then I have the capacity to change it from word to PDF and sign it electronically that way.
Council: Judge Wheless, have you seen any problems with the system? Like, for example, how you handle emergency orders when they come to you?
366th District Judge Ray Wheless, McKinney: I have an advantage. My court coordinator is the person that’s involved in all of this stuff. So I send somebody — I say, ‘Kim, take care of that stuff.’
Wheless: It gets done.
Council: Easy enough. OK. Judge Gary, I believe your county is changing over to a new filing system in about 2015.
397th District Judge Brian Gary, Sherman: Well —
Council: What do you expect? What are we looking forward to in Grayson County?
Gary: Well, we’ve had the e-filing capability for a while. It hasn’t been mandatory, but some people, particularly from down here, are taking advantage of it. So, we’ve had the ability to file online, so to speak, or by fax, as Judge Roach was talking about. We’re mandated to be all electronic filing by Jan. 1, 2015, based on our size. What I will tell y’all to expect is most of the stuff that Judge Roach is talking about; learn what happens in Collin County. Because if I was guessing, and that’s all it is, we will be leaning heavily on what they do to implement. I’ve already talked to our district clerk. She’s trying to talk to Collin County to see how they’re doing things. We’re going to have the same exact problems, and I don’t know how we’re going to solve — many of the solutions. I mean, I’m going to solve it by having my court coordinator act like Judge Wheless’. But there’s going to be those same hiccups, and I don’t know what, you know, the hard-and-fast answers are. I will tell you this: We are farther behind than Collin County, where we don’t have as much technology. Or, the technology we have, I like to complain about because it’s not as fast as it needs to be for a lot of these things. So, our learning curve is going to be steeper, but we’ve got more time to do it. My latest word from the district clerk was she wants to try to go paperless before Jan. 1, 2015. But there’s no hard target date. Maybe sometime in the spring she may start rolling it out as more optional and try to move that much — kind of give some people a grace period to try to get there.
Council: . . . Judge Gary, I want to stick with you and switch topics here, because this is actually a question that I — was suggested from the audience, and I didn’t have it on my list. But, given the nature of your jurisdiction, I think this is a very good question. You have a lot of family law clients that come before your court that are commuters. They live in Grayson County and work elsewhere. When you’re considering domicile restrictions, do you generally consider them within the confines of Grayson County — Grayson and contiguous counties?
Gary: . . . I will consider contiguous counties, for sure. I mean, I understand people have to commute. And, depending on the circumstances of the case, I mean, I don’t always insist on geographic restriction. It just varies with the case, but contiguous counties are probably the most common.
Council: Judge Wheless, what do you see, and what do you normally approve?
Wheless: Well, I think, like most of the judges up here, contiguous counties. But, there have been cases where I have not imposed the geographic restriction. I mean, if one spouse leaves their family for another person, they’ve kind of made their choice, is the way I look at it. So, that husband or wife wants to go home with their support base, then I let them leave the area.
Council: OK. Judge Becker, what if I’ve got a contiguous-county or actually within Collin County domicile restriction and I want to move? Are you going to approve that modification?
Becker: Possibly. I mean . . . we sound like we’re broken records with the ‘It depends’ answer. . . . I need to hear the facts of your case to answer, but that’s what we need to hear. I will tell you that it’s not . . . it’s not ruled out. It’s not ‘No, that’s never going to happen.’ It is: If somebody can make a good case for it, I’m willing to listen.
Council: Judge Roach, is it generally within Collin County or Collin and contiguous that you see normally?
Roach: I see, normally, that it’s Collin contiguous. But, if you think about it, I give you a two-hour difference. You’re talking from Grayson County to Rockwall County or back to south Dallas County. And, so, I do take that into consideration, too. That’s a big, big area. And your goal is to keep people together or close to their kids and, so, you can go have lunch with them or go to their school activities and stuff like that. Being two or two and a half hours away given traffic conditions, that certainly plays a part in my decision.
Council: Judge Roach, I’m going to stay with you. And Judge Roach has made news on this issue, and he knows this question is coming. What do you consider before enforcing a morality clause in a divorce decree? And, specifically, how do you balance the best interest of a child with, I guess, an adult’s freedom to associate?
Roach: I cannot comment specifically on a case that —
Council: Don’t want you to.
Roach: I won’t. I don’t make a distinction between enforcing a morality clause for child support or anything else. I enforce all of my clauses in every, every divorce decree, and, so, it’s not special. It’s a morality clause. During this issue with — I think it’s been a misunderstanding, particularly like I’m putting my morals on someone else. That’s not what I’m doing. That’s what we call it. . . . a morality clause. What it is, is a no-shacking-up clause. OK. I don’t know how to say that in Latin, but if I could figure it out. . . .
. . .
Roach: . . . That’s all it is, is no shacking up, and I think that’s the right thing to do, whatever it is. . . .[Y]ou shouldn’t have someone shacking up with you and the kids, at least — certainly —during the pendency of a case, because you’re still married, and, so, I think that’s bad. . . . I enforce all of my clauses equally, I think, and not specifically morality clauses or any others.
Council: Judge Becker, what’s your view of these? I assume they’re contractual obligations when they’re enforced. People want to enforce them. I guess you enforce them, too.
Becker: I think that’s kind of the purpose that we serve is: There’s two people that have a disagreement. They think that they have a set of rules that they’re. . . trying to follow. One side thinks they’re following. The other side doesn’t. We’re the umpire. We’re the referee. We’re the ones who say, ‘Yes, they’re trying to enforce it properly, or no, you’re not.’ So, yes, we try to enforce the clauses. I will second Judge Roach’s sentence. There’s no one clause that we favor over the other. If it’s in there, it should be enforced — if you can prove it.
Council: OK. Judge Wheless, I guess we will ask you this question a different way, if you can see a circumstance where you would not enforce [a] morality or no-shacking-up clause.
Wheless: I think it depends on the facts. I think we can all say that, but it just depends. Every case is different, and there have been cases where I didn’t enforce it. But it just depends on what the circumstances are.
Roach: It’s usually dad shacking up and mom shacking up. You wouldn’t enforce it. [Audience laughing.] You see that a lot, too. You’re sitting here, and you’re ready for a motion to enforce, and mom is going against dad for shacking up. And then it turns out mom has been shacking up, too, and then you kind of, everything kind of washes out.
Council: And then the deal is off because you — OK.
Roach: Pretty close. I mean, if that’s the way they want to raise their kids. I mean, you don’t want to micromanage it to that degree. But, I think that’s something you have to consider is that everybody is shacking up, and is it a lost cause?
Becker: And as a practical matter, who would you give the kids to if they’re both breaking the rules? [Audience laughing.]
Wheless: And here’s another matter, too, is that a lot of times the kids are fully aware of that. And, so, we think that we’re doing some kind of public service by preventing the shacking up. But the kids know that mom is having an affair with this guy and dad is having an affair with this woman. And, so, sometimes we’re not really — we’re just — we’re blind to the truth of the situation. The kids know everything that is going on.
Council: Judge Gary, I’m sure you’re anxious to answer this question — [Audience laughing.] — but do you enforce those on a regular basis and whether you need to seek it and enforce them?
Gary: Well, I would echo everything that’s been said up here. First, I don’t see it enforced that often. It’s usually in the context that someone’s really ticked off at the other spouse. And, frankly, most of the time, they’re being punitive, and a lot of times — I mean, if it’s during the pendency of a case, I am more than happy to enforce those, and I’m rather unhappy when somebody’s just violating it willfully, and they come in there. But I’m also very concerned [in] those circumstances whether the complaining party’s got clean hands. . . . I get them all the time. Somebody claims that their spouse has a drinking problem, and so we get a visitation. They say, ‘[N]o alcohol when the kids are around.’ That’s fine. I mean, I’m more than happy to enforce that. But, a lot of times, the person with the alcohol problem turns around and goes, ‘Well, I want it both ways. I don’t want the other person who’s got the kid 80 percent of the time and doesn’t have a drinking problem, they shouldn’t be able to have a drink when the kids are in their possession.’ And I’m like, ‘Really?’ I mean . . . if they only have a glass of wine once . . . [B]ecause when you take all of the circumstances into account — and, so, just because somebody might get mad because something is getting imposed on them because there’s an issue, whether it be their shacking up while there’s a divorce pending or whether it be that they’ve got a drinking problem that needs to be monitored. . . . [I]f they want to turn around and just be punitive about it — but on the other side, just because they’re mad, you know, I always take that into account, and there’s no hard-and-fast rule with how I deal with that, though.
Council: OK. I think Judge Gary — I think this is a question that applies to all of you, because you’re all [general] jurisdiction judges. I’m sure there’s times where you have extensive criminal trials that jam up your docket. If I’m a family lawyer, and I have an emergency matter that I need you to hear, and you’re in the middle of a three-week jury trial, how do I deal with that?
Gary: Well, the first thing that would happen in Grayson County is we’ve all got pretty good relationships up there. We don’t have a problem with some other judge hearing a case. . . . [I]f it’s something that I’ve got an extensive background on it, and it’s an ongoing case, and I’ve heard about 10 or 15 hearings on it already, and I need to be the one who deals with it, I’ll try to make time for you. I mean, I’ll do it over lunch if I have to, or I can, you know, shut a criminal trial down a couple of hours early if I need to, but you need to come . . . to me preferably with the other attorney. Somebody needs to let me know how big of an emergency it is, and if I — if I feel like I need to hear it, I’ll try to carve you out time. But, on the flip side of that, you know, I’m not necessarily opposed to let Judge Nall or Judge Fallon deal with it up in Grayson County. And, usually we try to accommodate each other when it’s something like that.
Council: Judge Wheless, how do you deal with this if you’re really busy in trial, and I need you to sign something, for example, a TRO?
Wheless: . . .[W]e’re never too busy to squeeze in things that need to be taken care of. And, so, we can start at 8 o’clock in the morning. Usually, we have our jury trials to start at 9:00, and usually we quit at 5:00. So, if I need to, I can come in at 8 o’clock and take care of something. Just let me know you need to have a hearing for something at 8 o’clock in the morning or at 4 o’clock in the afternoon [to] send the jury home early. They don’t mind. [Audience laughing.]
Wheless: They like to get out early on occasion. And, then, sometimes we can squeeze it in during lunchtime. If you let me know there’s an issue and you need to take care of [it] and need a quick hearing, we’ll just take an extra-long lunch, send the jury to lunch for an hour and a half and squeeze in 30 minutes and take care of your case. I don’t like ever sending lawyers away saying, ‘I don’t have time, I can’t hear your matter’ — ever.
Council: Judge Becker, how flexible are you when you’re tied up in trial and you need to deal with a family law matter?
Becker: I like to think pretty flexible. A lot of times what I find is sometimes it’s not necessarily a matter that needs to have a hearing. It’s more of the lawyers are not sure they disagree as to what my ruling was, or they want some clarification, or they want to, they thought of a scenario that I didn’t think of — instead of trying to figure [it] out, they need some guidance. They don’t necessarily need a full-on hearing, so I’ve tried to make our court pretty available to do conference calls. There have been a lot of hearings over the telephone. Neither side needs to appear. Either side can if they want, and we’ll do it from my chambers. But, once the lawyers realize they don’t have to make the trip to the courthouse, they often will take us up on that. [W]e have a conference call system. Especially with all of the construction going on around the exit by our courthouse right now, they don’t have to get to the parking lot, [and] they’re very happy about that.
Council: Judge Roach, do you have a busy, busy lunch time, breaks pertaining to matters like this when you’re in trial?
Roach: No, we don’t take lunch breaks at work. I can get you during lunch, when the jury is out eating lunch we can, I can usually do a temporary orders hearing or something in between. But, I will say that most emergencies are not emergencies. They really aren’t. And, so, I have to really understand what they are first before I’m going to do that — to my staff, mainly — but I make sure that it is an emergency. Second of all is, Judge Becker was right. I can get one conference call at 8 o’clock in the morning or 8:30 in the morning. I would be happy to do that. That’s a pretty good use of time and resources, so you don’t have to drive to the courthouse for something small when it can be handled by phone. And, also, too, a lot of times lawyers will walk in with a TRO or something and during the jury trial and turn around and walk out and take it to another court. Just hand it to the bailiff. The bailiff will hand it to me. and I can read and listen at the same time. And, so, a lot of times — just make sure that the bailiffs are aware of what you need, and then they can take care of it there.
Roach: Yeah, TexFile. I forgot. Just tell me it’s in my queue. . . . [Audience laughing.] . . . [L]astly, what I want to tell you is that we are extremely fortunate in Collin County [as] to how well the district court judges work with each other, and I am being serious. And, so, if someone’s in a jury trial or mine settles, we’ll send out a mass email to somebody and say, ‘[H]ey, listen, I’m in jury trial. Can you handle my docket for today?’ Or, ‘Hey, I’m doing this. Can you handle this?’ And we are very, very, willing to jump in, help another court doing something . . . that’s what we prefer is: You go to a sitting judge first before you go to an aux[iliary] court.
Council: And we have another news-related question. This one has to do with Judge Becker. He knows this one is coming as well, but I’m going to ask you first, Judge Roach, how do you handle social media, such as a Facebook accounts, and a way to avoid ex parte communications or any perceived bias in a case?
Roach: I have a Facebook page, but it’s friends only. And, so, I hope — I think all of you are my friends on my Facebook page, I’m sure. . . . I have a LinkedIn account as well, but what I don’t ever do is: I never reach out to anybody. So, I never try to friend anybody. And, so, lawyers sometimes will try to reach out and be your friend. If you want to send me a — I don’t know what it’s called — a request for being a friend, then I’ll go ahead and accept it and all of that stuff. But I don’t ever post anything on it.
Becker: The term is ‘friend request.’
Roach, Jr: Friend request, OK. I never post, I never post on it. I have a campaign Web site, too, Facebook page, and I do post events and things like that on it. And I’ve had people, either through LinkedIn or my campaign Web site, parties in cases and stuff, who send me e-mails or something or messages about stuff. I print them out and put them in the file and notify everybody that that happened. I don’t respond to anything at all, but it’s a necessary thing. I’m just saying, from the campaign’s perspective or we’re running for office, we have to have the Facebook page. In my opinion you have to be on social media to do that. But you have to be very, very, very careful on how you handle that, but I think we’re doing the best we can. . . . I don’t think that the ethical rules have really caught up to it or understand it or [are] able to assist us in knowing exactly what we need to do and not do.
Council: Judge Becker, you’ve had to face this head-on. It was a subject of a court of appeals decision. I don’t want you to talk about that case, but have you limited your use of Facebook, and what do you do now?
Becker: Yes. [Audience laughing.] I — I am off of Facebook or any other social media. I don’t think it’s wrong to be on it. I was on it for a long time even after this case came about, and I made the decision to get off of the social media not because of the case. I made the decision because I wasn’t monitoring it, and I thought it was irresponsible of me to have these methods of being contacted or have things posted on my page and — and, frankly, to have to continue to monitor: ‘Are my settings as private as I think they are?’ because they keep changing those settings on me. So, you know what? I’m not going to monitor it. Then, I’m probably safer just not being a part of it for now. I may change my mind on that at some point and have to, you know, throw myself back in there. But, for the time being, I’m not on any social media at all. If I am, I’m unaware of it, and somebody is pretending to be me, and that’s probably a crime. I think that it’s actually OK. I’m in favor of judges being on it in [a] certain sense of this. In the old days, back when dinosaurs were on the Earth, you could walk into a courtroom, and not until the moment that the judge looked at the other lawyer and kind of smiled and nodded like they just played golf together or just had a beer together did you realize, ‘Oh, my goodness, I’m about to get hammered because I’m a stranger in a strange land, and I don’t know anybody in here, and this guy knows the judge, or this lady knows the judge, and we’re in trouble.’ With the ethic of social media, you can look up [on] your phone and the judge and the staff and anybody else, and you can at least be aware of the relationships that exist that you wouldn’t have been aware of 20, 30 years ago. And, so, it’s this open-and-notorious disclosure out there about relationships that judges have, and I think that’s better. So I’m, I’m OK with judges being on it. I just didn’t want to make the effort.
Council: Judge Wheless, I don’t even know if you have a Facebook page, maybe you do. But, if you do, do you ever see a potential of you being friends with a lawyer and [if you've been in a situation that would cause you to be recused from the case.]
Wheless: Well, I don’t do any of that social media stuff. I made the mistake once of getting on Facebook because my court reporter wanted me to see some picture of her kid or something. So, I got on there and created a Facebook page because I had to look up pictures of her kid. And, after that, all these lawyers started sending friends request. . . . I just ignored them all, and then they’d send e-mails like, ‘Don’t you like me?’ . . . [Audience laughing.] So I don’t want to deal with all this. And, so, no Facebook, no LinkedIn, nothing for me. But, I’ve never had a campaign. I’ve never had to run a campaign. If I was like these two gentlemen and that, then I’d probably find it a necessary evil.
Council: I guess we’ll be looking for Judge Wheless to get a Facebook [page] pretty soon. Anyway, Judge Gary, do you have a Facebook page?
Gary: I do not, but you know, I’ve been fortunate. I’ve been on the bench five years. I haven’t had an opponent yet.
Roach Jr: That’s nice. That’s really nice.
Gary: I’ve got a few months, I guess, to see if somebody is going to file against me this time. But I do not have a Facebook [page]. But if I had to run a campaign — a contested campaign — I’m sure I would. And I would have to figure these things out and be careful about that as well. It seems to me that probably 10 or 12 years ago, I got a LinkedIn account. I know it’s still floating around out there, now and then, because I get those requests from people, not lawyers. So, if any of you now look me up and ask, I’m going to know that you were here and listening, and that’s why you sent it to me. I haven’t even used that. I haven’t used it ever, practically, and certainly not since I took the bench. And I think one of the reasons was that I seem to recall that, right after I took the bench, I remember hearing some . . . old story of some judge in The Valley who was running a campaign, and he got friended by a convicted felon during his campaign, and I just remember thinking, ‘[W]ell, that might be a problem, you know.’ So, you don’t know who all you’re getting stuff from. So, like I said, I don’t know the ins and outs of what you have to do when you’re running a campaign, but I’m certain that it’s a necessary evil. But I don’t do it. My wife’s got a Facebook page, so she can keep up with it.
Council: Judge Becker, do you have something that you want to add?
Becker: I have two other thoughts. My wife also has a Facebook page, and I can’t wait for her to get off of Facebook so that I can actually talk to her in the car again. [Audience laughing.] . . . [T]he other thing is I would say, as a general rule: The rules of ethics apply to social media the same as they apply to any other forms of communication with the court. There doesn’t need to be special rules about what you can and can’t do on Facebook or Twitter or any other interest or any of the other social media out there. You’re going to be very disappointed I don’t know all of them, right? So, the benefit of being on social media is if your — you know, in the old days if somebody called you up and talked to you about it as a judge, it was a ‘he said, she said.’ Now you have written documentation of what the interaction was, and you can quickly say, ‘Whoa, whoa, whoa! Stop! You can’t talk about that.’ You can call a halt to it and, depending on how far along the other person tried to go. . . [I]n the instance that occurred with me, I felt it necessary to print out the comment, the material. It’s all in the court file. I reported it to the ethics commissioner. I reported it to the — if I thought of an entity that existed to call and say, ‘Sorry, this just happened. What do I do now?’ . . . [T]he same ethics rules apply to social media. If it would be improper to have that conversation with the judge in a restaurant, it would be improper to do it on Facebook or Twitter.
Wheless: John, there’s an article in the newspaper just today about whether clicking the ‘like’ button is protected free speech or not. Someone was terminated because they liked something on a political person’s, on his Web site or something. They got canned, so they were claiming that was protected free speech.
Council: Judge Becker, I will ask you this thing, last thing on social media, and we’ll move on. I guess you’re saying: If you post something on your, on your Facebook page, and let’s say I’m a lawyer, and I’m going to say, ‘Hey, I’ve got a really great argument. I can’t wait to make it. Judge Becker, you’re probably going to rule my way.’ Do you do that at your own risk?
Becker: Well, I think that’s the kind of communication you would have with a colleague at your own office or at a bar function or in a phone call. There’s nothing wrong with you making that claim to your friend . . . in the real world. There’s nothing wrong with you making that sentiment known to them. The problem is when you begin to communicate directly with the court about the case and the other side’s not there. So that comment on your wall on Facebook that, you know, ‘I think things are going well,’ that’s fine. You’re basically making that comment to the world, and there’s nothing wrong about that, because the other side can see your wall, I suppose, if you’ve set it that way. But if you then reach out to the judge and say, ‘Judge, I really have this great argument I’d like to make to you,’ that’s where you’ve crossed the line. It’s pretty obvious when you start to think about what will be good and bad.
. . .
Roach, Jr: One thing we’re having a problem with social media is: juries and their ability to search things while they’re in the jury room and post things in the jury box. . . . There’s new rules or new instructions that the court is supposed to give jurors during their instruction phase . . . and when they’re first picked, so each of the judges do that. And if not, kind of remind them. . . . I go — extensively — over [with] the jury what they can and can’t do. Because we’ve had some serious, serious problems with people posting, tweeting about ‘I’m in court’ . . . ‘This case is about’ . . . kind of a play-by-play what’s going on — even during deliberations — and, so, that’s dangerous. And that’s going to cost us to retry this case, if we’re not careful. Just make sure the judge has instructed them, and then you can always mention it to his attorney during jury trial.
Council: Judge, do you take away jurors’ smart phones?
Roach: I do during some deliberations and high-profile criminal cases or something — I will take their phones away from them during the deliberations.
Council: What if a lawyer has got a smart phone or an iPad, and I’m sitting in your courtroom. Are you going to take that, too, if I’m just doing my job? I don’t know — just curious as to your policies.
Roach, Jr: We tell everybody [to] turn off their electronic devices, mainly because they interfere with the sound system. You ever hear that popping noise on the sound system? It’s because [of] the electronic signals that they’re getting from their cell service on to your iPad. But, I’m kind of relaxed about that because, if you’re doing your job and you’re sitting there waiting for me for a temporary orders hearing or some plea, and you want to get the work done and bill somebody —
Becker: You can be getting texted by another judge to come to their court.
Roach: Right, you can do that.
Becker: As long as you go to 296th first.
Roach: That’s right. That’s right. I’ll get you in and out [of] there, but anyway, so yeah, I’ll let you use it.