The No-Comfort Zone

McCathern business lawyer Jesse Hoffman likes to tackle questions that haven’t already been answered

Published in 2015 Texas Rising Stars Magazine

Q: You went to the state AG’s Office straight from law school. Any surprises?

A: Everything. Law school teaches you a lot about how to think like a lawyer. Funny I’m saying that—I always thought that was the most worn-out statement in law school; you hear it all the time—but it’s completely true.

When it comes to the practice of law—from the business of practicing law to the actual dynamics of a case, the anatomy of a case and how to litigate a case—I really don’t feel like you take up a lot of that in school. Coming out and doing it for real is when you first really learn how to do it, and that was a trial by fire.

On day one at the AG’s office, I think they gave me 45 cases. I’m starting out of law school, very green, and I have this theoretical knowledge of how to run a case. I think they were playing with me a little bit, because they don’t tell you until a little later in the day that you’re going to be mentored through this entire thing.

 

Q: What was your job at the AG’s Office?

A: The AG has a couple of really massive litigation divisions: general litigation and the one I went to, which is the law enforcement-defense division. When you first get there, they usually put you into the inmate-litigation team. Something like two out of every three federal lawsuits that ever make it to trial in Texas are filed by inmates against the state. They have a lot of time.

We had a supervisor whose job it was to oversee that entire subsection. And he ran a tight ship. He gave us outlines that really framed step by step the things you need to be focusing on and when you need to focus on them. Those are the kind of things that I think get ingrained into your head as a litigator. Before long, it’s second nature.

 

Q: You stayed at the AG’s Office for a couple of years?

A: I did. My wife got head-hunted to come out and move back to Dallas for a job here. A modern art museum was looking for a new director of catering and they heard about her. Kristin had to move to Grapevine, and she worked in Fort Worth for, I think it was six months, before I found my current job and came back from Austin to join the family. [We] had two children by then.

I have a tenacious wife; she did everything that could possibly be done so I’ve never had to veer off of the law path.

 

Q: Was it a tough adjustment moving into private practice in Dallas?

A: The number one biggest shocker when you move from government to private sector is billing—keeping up with your time in 10-minute increments is not a skill you learn when you’re in the public sector. At first it’s a major distraction from your real job: coming up with legal arguments and drafting them into motions and such. It probably took me a solid year, year and a half, before I really felt comfortable that I was capturing all of my time and billing properly and it wasn’t just distracting from my day any more.

Probably the second-biggest difference in private practice is you have clients who will send you your cases as opposed to just a steady stream of the same type of cases. So your clients are going to have a huge range of different things they need. Sometimes a business client will need a favor for a personal issue, maybe a probate thing, which will be way outside of your wheelhouse if you’ve just been practicing business law. So you get an opportunity to step outside of your comfort zone here.

 

Q: What’s your favorite part of the job?

A: Figuring out a new or novel legal argument. When you have a docket of 45 cases, all filed by inmates, you see a lot of the same cases—but you do get some exposure to the ones that are blazing a new constitutional issue that will consume a year of your life. That, to me, is what was fascinating about working [for the AG] or working anywhere in the legal profession. Answering questions that haven’t already been answered. I get to do a lot more of that here.

 

Q: When were you drawn to law?

A: I always wanted to be a lawyer. My family on the Hoffman side has lawyers going back for generations. My grandfather really inspired me to become a lawyer. He was a lawyer in Illinois. All transactional stuff. We went up to visit him probably three times a year, so I got to hear a lot about his life as a lawyer, and I think I probably romanticized it a bit.

It was more the stories about his riding to work in a suit and carrying his hat up to work. He worked downtown in Chicago and would have to ride the train back then from his suburb to the downtown area for work. It was more of a narrative story about this guy I respected completely. [It] was almost a side fact that he was a lawyer, but so important because it just framed everything else. I always liked that feeling of heritage, and following in some of the footsteps that your family laid down before you.

 

Q: You’ve been involved in some groundbreaking cases.

A: Probably my first landmark case came while I was a public attorney for the AG’s office. There was a case called Sossamon v. Lone Star State. This was a religious freedom case. There is a statute [the Religious Land Use and Institutionalized Persons Act] that governs [these] types of lawsuits. In more recent history … inmates will want to grow a beard as part of their religious expression. And the prisons don’t want you to have a place to hide things, so they try to get you to shave your beard.

We were trying to figure out whether or not the prisons are allowed to define where you can congregate and how you can congregate for whatever type of religion. They had hundreds of inmates that wanted to congregate at the same time. The state is saying no, we have everybody segregated out to certain sections so that we can control you. We want you to congregate in smaller groups in your own little sections. That’s what started the fight.

What it morphed into is the question of whether, if the state loses those fights, [it] can be subject to damages in the lawsuit. I got to draft the legal argument that answered that question and was ultimately upheld at the [U.S.] Supreme Court level, saying that the state did not have to pay damages, generally acknowledging that this is a tough balance beam for the state to walk. They have to err on the side of security for the prison, and if the court decides that they’re wrong, they shouldn’t be subject to money damages. They should just have to change the policy.

 

Q: And the prisoners who wanted to assemble in one place?

A: They ended up finding a satisfactory way to accommodate this larger gathering of the inmates, so that was a moot point by the time the Supreme Court had to decide it.

 

Q: So you wrote the motion that became precedent on that statute.

A: Exactly. That was the real groundbreaking decision—the damages question. The state’s going to run into individual questions about how to administer this religious freedom in the prisons. But if they were going to be made subject to damages, that really exposed them to a big problem, because it could cost the state quite a bit of money.

[The case] was fun for me because I got to coordinate with the solicitor general when this thing was appealed. I got to work with their office in crafting the additional arguments as it moved up the chain toward the Supreme Court. It gave me great exposure. It gave me one of those cases that I’m most fascinated by, because it’s not a question that’s been answered yet. And I got exposure to appellate attorneys, which was another thing that became an interest.

 

Q: Which do you like better, appellate cases or the trial-level work?

A: I like both of them for different reasons. I really do like being able to sit down with a finite grouping of evidence and arguments, which is something that will only happen at the appellate level. It’s a little bit more of a Wild West scenario when you’re in the state courts, [where] right up to the last second you’re generally free to come up with a new argument or continue your investigation into new facts. Once you get to the appellate level that’s no longer the case. That’s where you’re going to sit down and iron out any wrinkle that’s been identified in your trial arguments and just perfect the argument that you believed in so strongly at that first level.

 

Q: Have you had an important mentor over the years?

A: The person who really defined my current interest in law is my court professor from Southern Methodist University Dedman School of Law. Her name was Ellen Pryor. She got me very interested in torts … in how to read a case so that you can really interpret the outcome. I became her student teaching assistant, and what it gave me access to at the end was the drafting project for [Chapter 10 of] the Restatement [Third] of Torts [conducted by the American Law Institute], dealing with questions of agency and independent contractor issues. Basically, I had to do an analysis of every tort case that had been issued throughout the nation for a period of time and then catalog them and [note] if they had changed anything about the way torts had existed previously in that state. Then we had to assess what is the general thrust for the entire nation.

One of the biggest hurdles you have as a young attorney is learning to look past the irrelevant portions of a case. Being able to have that much exposure to so many cases—that got a lot of that learning curve out of the way very early for me.

 

Q: How did you end up with the NFL as a client?

A: Once I left the AG’s office for McCathern, I [almost] immediately jumped into some NFL and Dallas Cowboys cases. At the very beginning, I was working on employment lawsuits for various insurance clients. I was really excited when they first pegged me for this other type of suit. You know, it’s an NFL/Dallas Cowboys lawsuit, and I felt like, “Here’s some big exposure.”

We had a suit that touched on some constitutional First Amendment issues, which I’d had exposure to at the AG’s office. Somebody sued the Cowboys, the NFL, and I think the city of Arlington, all for having instituted regulations on who’s allowed to market NFL products and the NFL symbols within a certain boundary from the stadium. It gave me exposure to the people in the NFL and in the Cowboys administration. That gave me access to [the] falling-ice lawsuits, which ended up taking years—so I had significant responsibility for some of these much larger suits.

 

Q: Tell me about the falling-ice case.

A: During the [2011] Super Bowl we had these freak ice storms. We had so much ice accumulation on the top of Cowboy Stadium that it was able eventually to cause almost an avalanche over the side of this big-domed roof, which had something like a 4-foot gutter that usually you would expect to stop anything that was sliding down. There were three plaintiffs who ended up getting bodily injury.

The two that settled first had fairly minor injuries. Then there’s one that actually went to trial. This is the person who by far suffered the most severe injuries. The biggest damages question they had, from my perspective, in that case related to tinnitus. He described it as really a debilitating problem, ringing in his ears. It could be a horrible experience. This guy was a sound engineer, who listened to loud concerts and things of that sort his entire life. Whether or not he already had tinnitus and whether or not that tinnitus was maybe worsened or if it had no effect at all … that to me was the biggest damages question in that case. It ended up settling halfway through the trial, so we may never know the answer to that.

 

Q: What did you take from your work on that case?

A: It was the first lawsuit I’ve [been] a part of that was of a size for which you could justify having nearly an entire office of attorneys dedicated to just one case. So you step outside of just managing your own litigation and you take on a new role of managing other attorneys. That, to me, was probably an evolution in my practice, and it gave me an invaluable skill set. It allows you to focus on creating novel arguments, planning and implementing strategy, addressing the arguments of law from both sides, and then watching them unfold in front of you from a more bird’s-eye view.

 

Q: Do you have a favorite argument among the ones you’ve come up with?

A: One of my clients [Fix it Today LLC] utilizes tools that may have already existed, in a way that they’ve never been utilized before. [It] hires independent contractors throughout the state of Texas to do auto repairs. What they’re able to do is offer zero-interest financing by creating installment agreements for people or for their customers who make these auto repairs. And the reason they structure it this way is it allows them to use workers’ liens, which take top priority over every other lien on that same vehicle.

So whenever these guys repair a vehicle, they have the top-priority lien. It could revolutionize this industry. Fix it Today was built based on my advice for how a company that expands across the state of Texas—as opposed to just being an individual shop in one locale—could utilize workers’ liens to secure their fees.

 

Q: How do you come up with these ideas?  Do you just stay up till 3 in the morning thinking?

A: Lots of times that’s exactly what happens.That [case] actually allowed me to get into politics a little bit as well, because we’re trying to clarify some of the ambiguities in the statute as well as in the courts. I [drafted] legislation that we introduced last session, and it got stuck in committee. It will be reintroduced this year. What we want to do is similar to what we did last time; that’s to find a good, broad base of bipartisan support. It’s been a lot of fun, and it got me back into the legislative halls.

 

Q: When were you there before?

A: That was back while I was an undergrad at the University of Texas. One of the things that I loved about UT is it’s got access to the Legislature, so I spent my last two years there working under a representative named Bob Griggs, as his intern. It was Griggs’ freshman year, so it was a learning experience for the both of us. Chris Bell was his legislative director and became another mentor. A lot of times you make some monumental mistakes, but then you learn from them, and you get to see what is important to focus on and what is not. This was a really interesting time anecdotally to be in the Legislature, because this was back when we passed tort reform in Texas and the Texas 11 went to Oklahoma to bust the quorum for redistricting votes. So it was an eventful session.

 

Q: Might you ever have political aspirations?

A: Oh, sure. I feel like politics is where the magic happens. That’s what creates the laws I work with now, and it’s your first opportunity to get those laws right. There are so many laws that have ambiguity and even flat-out contradictions in them, and if you have solid legislation the first time around, that just won’t happen. It can save everybody in my industry and our clients lots of time and money if it’s just done correctly.

 

Q: Do you have a timeline in your mind?

A: You know, I threw a lot of my timelines out of the window when I started having kids. Once I’m older and well established in the law, I think that’s probably when I’ll just decide.

 

Q: With three young kids and a demanding practice, do you have such a thing as free time?

A: I have a lot of hobbies that are probably defined by my children at this point. Outside of work, I spend my time working on getting better at Little League and attending Boy Scout meetings. I think I work better when my plate is completely full. I’ve kind of figured that out.

 

This interview was edited and condensed.

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