(Note: As I have done in past elections, I am running a series of Q&As for Democratic judicial candidates on the November ballot. This is intended to help introduce the candidates and their experiences to those who plan to vote. I am running these responses in the order that I receive them from the candidates.)
Kim Bohannon Hoesl
1. Who are you and what are you running for?
My name is Kim Bohannon Hoesl, and I am the Democratic candidate for judge of Harris County Probate Court No. One.
2. What kind of cases does this court hear?
Harris County is fortunate in having four statutory probate courts which have exclusive jurisdiction over probate matters. In other counties, in contrast, probate matters may be heard in county civil courts or district civil courts. But in Harris County, the probate courts are the exclusive court for probate which generally includes two types of matters: the administration of probate estates and the administration of guardianships.
Those duties involve both administrative-type tasks such as ensuring that wills comply with state law, and judicial tasks, such as adjudicating contested issues, including formal lawsuits. On the guardianship side, the Court also has to ensure that the rights of the proposed/actual ward are respected. It is these latter functions that test the mettle of the bench. To properly perform these duties, the judge must be able to navigate the ins and outs of litigation, and must be able to put the interests of the litigants (including the wards) first.
Finally, Probate Courts Three and Four also hear the mental health docket in Harris County. This is where cases involving forced medication and commitments are heard.
3. Why are you running for this particular bench?
I have practiced civil and commercial litigation, including in the probate context, for over ten years. The first thing a client wants is an estimate of their chances of winning in a particular dispute. As the attorney, one of my jobs is to evaluate the facts and the law as they apply to the dispute, and then provide some information on the client’s position so that the client may make an informed decision in their case. In order to do that, however, I have to assume that the judge will listen to the facts, will know the law, and will fairly and justly apply the law to those facts. In practice, this assumption is far too often wrong. When a judge is unwilling to listen to the facts of a case, or is convinced of their own knowledge as to which side should win or lose, or is unfamiliar with the law at issue, it is nearly impossible to gauge my client’s chances of prevailing on anything. There is no justice in that situation, only arbitrary ruling.
I decided to run for judge because I believe we need fresh perspectives on the bench, and our citizens need experienced judges who are willing to hear the facts and apply the law. I decided to run for probate judge in particular because I found that often times, in both Harris County and in other counties, the probate bench simply did not have the trial experience necessary to effectively manage contested issues.
This is not to say that our current probate judges have no probate experience. Oftentimes, as is true of my Republican opponent, the candidate comes to the bench with many years of probate practice under their belts. That practice generally includes estate planning, drafting estate-related documents, shepherding wills through the probate process, assisting an administrator in managing an estate, applying for guardianships, and assisting guardians. And, on occasion, a contested issue may arise.
However, a probate judge is not planning estates, drafting wills, or even drafting guardianship applications. A probate judge is not analyzing various tax consequences for different estate plans. The key role played by the probate judge is the management of disputes during the probate process. Disputes could range from will contests, to contested guardianship proceedings, and even full-blown civil litigation that could include issues as disparate as fiduciary duty claims, contract claims, business management claims, personal injury claims, and wrongful death claims. The probate judge is a critical cog in the wheels of justice, and must effectively manage the dispute at every stage. This includes pleadings, motion practice, shepherding the discovery process, managing jury trials, and faithfully guarding and protecting the rights of the litigants, all the while upholding the law.
In other words, the probate judge should be experienced in litigation and should be prepared to make tough decisions so that litigants get their day in court. It is these contested issues, the disputes and the trials, that demand the most from a judge. When the judge is not up to par, the litigants pay the price. I have seen litigants pay that price far too often. I am running for probate judge to make sure that, in my court, every litigant gets their day in court, in a timely and efficient manner, because justice delayed is simply justice denied.
4. What are your qualifications for this job?
I have practiced nothing but civil litigation with the same firm for over ten years. My practice involves a diverse range of cases including fiduciary litigation (for example, suits against corporate officers and directors, suits by and against executors and trustees), contract disputes, intellectual property disputes (trade secrets, copyright infringement), business divorce, personal injury, and, of course, probate and trust litigation.
My experience includes the full range of litigation activity, beginning with investigation, drafting pleadings, managing discovery, conducting depositions, working with experts, selecting juries, managing trials, and following through with appeals. I have argued legal issues before trial courts and probate courts, before the First Court of Appeals, and before the Texas Supreme Court. Finally, my practice includes transactional matters such as business filings, will drafting, probating wills, and working with executors and trustees.
I also have some experience with the behind-the-scenes organization of the Harris County courts. Before attending, and during, law school, I worked for the Administrative Office of the District Courts, which provided the office support for the district judges, including the court coordinators, court reporters, visiting judge assignments, and managing the qualification and selection process for court-appointed attorneys. A similar support system is in place for the county courts, which include the probate courts. Accordingly, while I have not yet served as a judge, I do have familiarity with the administrative system within which the judge operates.
5. Why is this race important?
When a litigant comes to the probate court, they are usually dealing with very intimate and personal family matters that involve loss, grief, and pain. Perhaps a loved one has recently passed away and their estate needs to be settled. Perhaps a beloved parent has reached a point where they can no longer take care of themselves, and a guardianship is needed. These events in our lives are difficult enough, even when there is no dispute involved.
However, if there is a dispute, such as a family member contesting the will or claiming that an executor breached a fiduciary duty, we end up with a very different scenario. Now, the pain of this family loss is drawn out in a legal battle that strains family relationships and drains family budgets. Here is where the kind of judge on the bench can make a huge difference in the justice that the litigants receive. An experienced probate judge can shepherd the dispute effectively, ensuring that the law is upheld and that justice is served in a timely and efficient manner. A judge with little litigation experience, on the other hand, can prolong the already-too long process, increase the family trauma, and essentially deny the litigants any effective resolution.
Finally, in our probate bar, there is a definite impression of what some may call “cronyism.” In other words, the small probate bench and the small probate bar are very familiar with each other. Harris County probate courts employ an appointment system for the appointment of ad litem attorneys in certain cases. The informal nature of the system and the familiarity of the bench and bar do not promote much confidence in the impartiality or fairness of the system. Instead, this situation invites the perception that the judges and the attorneys are too cozy, often using the appointments as rewards. When a litigant sees the attorneys in their dispute in cozy conversation with the bench, or learn that the opposing attorney handles many appointments from the court, it is not surprising that the litigant may believe the deck is already stacked against them.
Regardless of whether actual favoritism exists, it is the appearance of favoritism that is a problem. I bring independence to the bench because my background is from outside the probate bar. I stand apart from those attorneys and from the alliances among them. I intend to fulfill the role of the impartial justice, beholden to no lawyer or firm, relying solely upon the law and the facts. For appointments, I will endeavor to enact a selection system based on the needs of the litigant and the qualifications of the attorney, and nothing else. I believe that is the only way that justice can be served.
6. Why should people vote for you in November?
Every citizen has the right to have their case heard:
- in a timely manner;
- by a court that listens to the facts with fresh ears, regardless of how many times similar facts may have come before the court; and
- by a court that is knowledgeable of both the law and the process necessary for justice.
I have the right experience and the necessary independence that our probate court system desperately needs to achieve this goal.