West Texas Hammurabi

David Keltner expands the law to new frontiers        

Published in 2008 Texas Super Lawyers Magazine — October 2008

Back when the West was wild and Fort Worth had a fort, a few men sought to extend the law to uncharted territories. Today, perched in his office high atop Sundance Square with a view of the granite courthouse that replaced the old cavalry fort, David Keltner continues the fight to extend the law into new frontiers. Keltner's law-changing tool is the Appeals Court.

"I love that you can fit a case into the fabric of law and be consistent with what the law has traditionally been," he says, "or change the law to fit a particularly bad situation. Changing the law to me is as fine as anything you can do.

"Look at the Ten Commandments; they're pretty strict," he says. "But who first said that ‘Thou shalt not kill' didn't apply to enemies in wartime? Who was the first to say it was OK to execute someone?' And the Bible is full of killings."

At any one time, Keltner, who presides over Kelly Hart & Hallman's appellate practice group, may be handling cases involving patent infringement; determining whether sensitive and private records turned over to auditors can be subpoenaed by a third party; or challenging whether a hospital administrator can override parents' decision not to place a severely premature, mentally and physically handicapped newborn on life support.

"When my client wants to do something and the law puts up a roadblock, I have to be innovative and find a legal way around that roadblock," he says. "That's what good lawyers do."

Keltner always admired his attorney father, Ed, "a great man, courageous on social causes, and the type of person who, when he walked in a room, people would generally stand up." But he started out in journalism at Trinity University and worked for the Star-Telegram and as an AP stringer and thought he might continue in that field even when he enrolled at Southern Methodist University, Dedman School of Law in 1972.

It was the work of two journalists, though—Bob Woodward and Carl Bernstein—that convinced him to join the legal ranks.

Keltner entered Dedman just as the Watergate investigations were getting under way. "It was an exciting time to be there," he says. "Remember, all those guys in Nixon's administration who did bad things were lawyers—Dean, Mitchell. ... Then the Supreme Court—including judges appointed by Nixon himself—issued a unanimous decision that Nixon had to turn over the tapes. It showed that the system worked and none of us can get away with abusing the law. It was a defining moment for me. It gave purpose to what I did."

Upon graduating, he joined the firm Shannon Gracey Ratliff & Miller, where he met his wife, Larisa, who was working as a summer clerk. They later remet when she served as his briefing attorney on a case, and married shortly afterwards. Today they have two children, Elena, 13, and Jack, 11.

From the outset, Keltner was attracted to appellate law. "I like researching in books for cases that would govern a decision. That's fun for me, and generally not for other people."

Unfortunately, Texas didn't actually have much appellate law at the time. When the firm's only appellate lawyer left abruptly, creating an opening during Keltner's third year, his mentor Kleber Miller informed him he wasn't qualified for the job. "Kleber told me appellate lawyers are all nerds with no personality, and since I had a personality, I was unqualified," Keltner says with a laugh. "He named all the appellate lawyers around—and he was right!"

Nonetheless, Keltner snagged all the appeals cases he could, and "before anybody knew I wasn't an appellate lawyer, I was."

When Keltner decided to run for appellate judge of the 2nd Court of Appeals in Fort Worth in 1986, he joined a field of six other candidates. One by one, they all dropped out, and although Keltner ultimately ran unopposed, one candidate withdrew too late for his name to be removed from the ballot. "So I still had to run hard, because if I lost to a guy who'd dropped out, I could never show my face around here." At age 36, he became the youngest-ever appellate judge in Texas.

In 1990, a sudden resignation on the Texas Supreme Court led to Keltner being offered the Democratic nomination to fill that vacancy, which almost ensured he'd be elected to his dream job in the general election.

"I said ‘yes' for about 12 hours," Keltner says. Discussing it that night with his family, one of them asked him, "Why aren't you happier?" Keltner realized he couldn't abide the "insidious" partisan political process. "I hated raising money and people offering contributions and asking how I'd rule on issues like Roe v. Wade," he says. "It made me very uncomfortable. And running for the Supreme Court would've been worse."

That realization caused Keltner not only to decline the nomination, but a half-year later, to resign his judgeship midterm.

"If you like the law, you have to love being a judge. You're supposed to decide on fairness and what is within the law." Keltner acknowledges that refusing to address where you stand on an issue leaves competing candidates with not much more to debate than "I can be fairer than you," but he is adamant that "there's nothing that politics ought to influence a judge about. Absolutely nothing."

He does admit to being seduced by having donned the robe for a while.

"Something happens when you put on the black robe," he says. "You're instantly powerful, everyone acts like they like you, no one says a bad word to your face."

So, in 1990, Keltner returned to private practice as a partner in Haynes and Boone, where he helped build the appellate division from scratch. In 2007, after a decade with his own firm, Jose, Henry, Brantley and Keltner, he moved to Kelly Hart & Hallman, which currently houses about 120 attorneys.

He says the most important insight he drew from his bench experience was learning to think like a judge. "Lawyers don't understand that a judge has bigger considerations than just their case," he says. "As a judge it was important that the decision I made fit into the fabric of the law that other judges have made in cases in other areas. As an appellate lawyer, if you want to persuade a judge, you'd better learn to think like them."

Almost as important is learning what not to do.

"Generally we sat in three-judge panels and we'd often ask an attorney, ‘If X is true, how does that affect your case?' If he or she answered, ‘We'd lose,' you knew you could ask that attorney the kind of questions you need to decide properly." Less helpful, Keltner says, were the attorneys who gave "Richard Nixon qualifying responses" like "‘To the best of my recollection ...' There's no place for lawyers to say that, or answer on technicalities," Keltner says. "I tell my lawyers, ‘Don't sweat the small stuff—that doesn't win cases. Think big. There's usually one thing that will change a case. Figure out what it is, and work on that.'"

Keltner is a "civil" lawyer in both senses of the word. He recalls the time he'd made an effective presentation in court and the opposing counsel approached him in the hallway and blustered, "If this case is reversed, we're going to sue the client and the parent corporation and get hundreds of millions and whip your ass."

Keltner chuckles. "If someone feels the need to tell you that, they probably can't do it," he says. "It's the ones who shake your hand and smile who'll probably kick you.

"You don't need to be rude, and you never need to be a bully. Ninety percent of practicing law is practicing people. After a while, you develop a second sense that a certain action now is going to get you hit from another side at another time."

A photo of his grandfather, also named Ed, adorned in a medal-laden World War II colonel's uniform is positioned so that he looks over Keltner's left shoulder when he's at his desk. Ed survived both the Bataan death march and captivity as a POW for three and a half years. "Sometimes I have to make difficult decisions snap-wise," he says. "I think, ‘What would granddad do?' And that never steers me wrong. I've taken cases where I knew I didn't have much chance of success, just because I knew they desperately needed my help."

One recent example: Keltner represented the Unauthorized Practice of Law Committee (UPLC), a body created by the Legislature, which was sued by American Home and Travelers, insurance companies it was investigating. "Traditionally," he says, "if you have liability insurance and get into an accident and someone sues you, the insurance company defends you using a lawyer outside the firm. Recently, some companies started using in-house lawyers to cut costs." Keltner says that aside from many of them not being "at the top of their class," it creates a conflict of interest because the in-house attorney is serving two masters, the client and the company, whose interests may diverge. Although he lost the case in the Texas Supreme Court, Keltner says he's happy he donated some 3,000 hours defending UPLC. "We did get the court to impose some real limitations on the practice that will protect Texans who might otherwise be abused," he says. "And it was fun and the right thing to do."

Much longer ago, but still gnawing at Keltner, is a case involving a couple, the Millers. The wife went into labor four months early, and a doctor informed them that they'd have to induce birth in 11 hours, but that the baby would be severely brain-damaged and physically deformed. He advised against putting the baby on life support, and the parents concurred. When the husband returned to the hospital after making funeral arrangements, the doctor had disappeared and the hospital administrator informed them that the hospital would be taking extraordinary measures to keep the infant alive, after all. The Millers sued. In a futile appeal to the Texas Supreme Court, Keltner argued that the 11-hour time frame negated any kind of "emergency" decision that would've justified an administrator's ignoring the parents' wishes. The court, unfortunately, disagreed.

Keltner has also helped draft advertising guidelines for Texas attorneys, worked on referendums for the state bar to get "bad lawyers out," and for the past five years has been chair to the CLE committee, which he characterizes as "a model for the rest of the country."

"We have online programs and scholarly papers on exactly what you want. And it's helping drive down the cost of legal fees," he says. We owe it to the public that when they see a lawyer, they see someone who is honest, trustworthy and trained."

His peers obviously recognize those qualities in Keltner. He has been Fellow of the American Academy of Appellate Lawyers, one of only 500 in the country, since 1996, and is a member of the American Board of Trial Advocates since 1986. He has also served as chair of the board of directors of the State Bar of Texas in 2000, and his office is decorated with honors and award-bearing plaques.

"Once you become known as being safe to give an award to," he says, smiling, "everybody gives you one."

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