The Texas Prosecutor, July–August 2018

Taking a leap—by taking the board specialization exam

It is a rather unnerving task to write an article about the Texas Board of Legal Specialization in Criminal Law for a bunch of reasons. The most concerning of them all is that I have no idea how I did on this test. I don’t know if I aced it straight away, or if I got lucky and the examiner fell asleep grading my essays only to snap out of it one pencil mark shy of a failing grade. With both possibilities in mind, this article is not intended to be some “BarBri how-to” for board specialization—rather, my goals are simply to demystify the process and give those of you thinking of taking this test some tools for your toolbox.

Why get board certified?
There seem to be plenty of reasons not to. Most of us who had to sit through the bar exam seem to have a passionate dislike for the word “test.” And some prosecutors are so far along in their careers that messing with certification just doesn’t make any sense to them. I also hear attorneys ask, “What’s the big deal? I try cases against So-And-So Attorney who’s board-certified, and I don’t see what all the fuss is about.” These are all fair statements when people are deciding whether to jump into the Texas Board of Legal Specialization (TBLS) application waters. Board certification certainly isn’t for everyone. But for those who are interested, there are some great reasons to go ahead and take that leap.
    Passing a test doesn’t magically transform anyone into Gerry Spence or Racehorse Haynes, but extensive study and preparation for the board certification exam can play a major role in taking that next step as a professional criminal attorney. Like many prosecutors, I swore that the bar exam would be the last test I would ever take, and this vow was not quickly compromised. But I continued to see respected peers taking and passing this test. They seemed more knowledgeable about current legal issues, and they came across as more confident. While not all board-certified attorneys are fantastic litigators, a good majority of the trial attorneys I aspire to emulate are board-certified.
    Finally, being board-certified is a credential that lasts for the rest of your career. It comes with a certain distinction. It tells peers, coworkers, judges, and the public that you are serious about your profession and that you are dedicated to improving the competency of the local and state bar. TBLS allowing an attorney to sit for this test, by itself, is a testament to that attorney’s career accomplishments, ethical character, and respect among peers. There are only so many attorneys in certain areas who have the proper credentials to sit for this test, much less the desire to study for months and then submit themselves to a grueling exam. According to the TLBS statistics, 25 attorneys were certified after passing the 2017 board examination, and there are only 861 total board-certified criminal attorneys in Texas as of 2018. So while being board certified isn’t everything, it is a distinction that can help an attorney stand out in a field of great prosecutors. Toss in an incentive from my office that it would pay for test fees and board dues if we pass—and that was really all the extra incentive I needed to go ahead and jump in to these somewhat choppy waters.

What are the requirements for board certification?
To be considered to sit for the Criminal Specialization exam, attorneys must have been practicing for five years, with at least 25 percent of their time spent practicing criminal law in Texas during the three years preceding an application. Attorneys must also have been lead counsel for the requisite number and combination of felony, misdemeanor, federal, and appellate cases. (A link to the attorney standards for certification in criminal law can be found at www.tbls.org/cert/AttyStandards.aspx.)
    A common combination for state prosecutors without federal experience is five felony jury trials, plus either 10 misdemeanor jury trials or five more felony jury trials, along with five appeals. Depending on your office, appeals may be a part of your life, or you may have never touched a brief.  For this reason, TBLS allows applicants to submit other significant, relevant experience as a substitute for deficits in their credentials, and it will consider the nature, complexity, and duration of the issues the applicant has handled when evaluating this experience. I myself had only written three appeals when I applied, so in my application I also offered examples of trial briefs and other complicated litigation I had handled to supplement my missing appeals.
    In addition to these requirements, applicants must provide the number of trials, proceedings, and other matters they have participated in over the last three years. This part of the application can be quite tedious and time-consuming. This is especially true for those of us who have worked in multiple counties through our careers. Tallying trials was easy because I kept track of them; however, I had not kept track of every plea I had ever done. Some offices can run numbers based on cases assigned for a time period, but for smaller counties, one suggestion is to ask for the numbers of pled and disposed cases for a relevant time period, then look at some old dockets and guestimate based on the data. Most peers I consulted suggested that giving a conservative guestimate is very much acceptable, but you should check with the people at TBLS to be sure. They are very helpful.
    In addition, applicants must submit names of attorneys and judges who can attest to their competence in a specialty area in accordance with the standards. These references must have dealt with the applicant in the last three years, be familiar with their work, and affirm that an applicant should be certified in a specialty area. The TBLS may also randomly solicit additional attorneys and/or judges to attest to the applicant’s competence.  
    After filling out all of this information, an attorney must certify that he meets the qualifications and that he has the required qualifying CLE credits, and then he can turn in the application by the deadline. At that point it is a waiting game. TBLS notifies candidates if they are accepted to sit for the exam sometime in the summer. I suggest moving forward with your study and preparation as if you will be accepted. I was not notified of my acceptance until the middle of July while sitting in the Advanced Criminal Law CLE Course in Houston. With the test in October, I was glad I had already started reading.

Study materials
Topics include search and seizure, state and federal constitutional issues, pleas, federal and state criminal procedure, confessions, jury selection, federal and state rules of evidence, jury charges, punishment, federal sentencing guidelines, motions for new trial, federal and state appeals, post-conviction issues, probation and parole, death penalty, and even juvenile law, among others. (The whole list of what the exam covers is at http://content.tbls .org/pdf/attstdcr.pdf/.)
    Because of the overwhelming amount of information on this test, I found it extremely helpful to start by talking to people who had already taken it. Jim Hudson, my chief at the time, was more than happy to share some tips on how he juggled studying and case work and even provided me with his study materials. Even though it had been a while since he had taken the test, his materials contained some great information and practice tests. But most importantly, having an encouraging senior attorney like Jim to bounce information off of during my studying was indispensable.
    Additionally, Matt Smid, a friend and colleague, preached a simple, tried-and-true method of reading the codes as many times as possible. He also advocated the benefits of O’Connor’s code books, and I must say that using the O’Connor Federal and Texas Criminal Codes made a lot of sense. While my TDCAA books are indispensable in my office and in trial, the defense attorneys and judges that help write the test seem to incorporate examples and formulate questions directly from the case summaries in the O’Connor books. (There is nothing like seeing a test question straight out of a case summary you are familiar with!) Plus, I find the O’Connor codes a welcome addition to my growing collection of TDCAA books.
    Being “Smid-like” in my preparation seems to have paid off for me. For that reason, I too advocate reading in full:
•    the Code of Criminal Procedure (both federal and Texas, including case summaries);
•    the Texas Penal Code;
•    the federal and Texas Rules of Evidence. You might make a “cheat sheet” of the differences between the two, as distinctions between the federal and state Rules of Evidence seemed to be favorite topics for the multiple-choice questions on my exam; and
•    the federal and Texas Rules of Appellate Procedure.
    When you are ready to study the federal substantive laws and the federal sentencing guidelines, O’Connor’s is still useful. There are also guides, manuals, and charts available for download from the U.S. Department of Justice website. If you are federal-illiterate like I was, find yourself a prosecutor or defense attorney with federal chops and bribe them to break it down for you. Once I had a basic understanding of how the federal system worked and the purpose of the guidelines, the U.S. Code and sentencing manuals made a lot more sense.
    In addition to gathering codes and indenturing friends, I suggest getting your paws on Judge David Newell’s “Supreme Court and CCA significant decisions” papers for the last three to four years. If you are unfamiliar, Judge Newell is a judge on the Texas Court of Criminal Appeals. These papers come right from the source, are really well-summarized, and are written in an approachable tone. They can probably be harvested from various Advanced Criminal Law Course binders stashed in various corners of your office, but I suggest going straight to Judge Newell’s executive assistant, Nichole Reedy (email her at [email protected]). Sometimes the papers are a work in progress until after the Advanced Course, and Nichole can send you the final and complete version. If I were a TBLS test writer, recent and significant evolutions in caselaw from the past few years would be in my wheelhouse for use in the exam.
    In addition to these papers, get a hold of the Advanced Criminal Law Course binders for the last couple of years and rummage through them for other helpful papers. I looked through them myself and created a “frankenbinder” of papers on various topics from 2014 to 2017. I collected anything that looked interesting or involved a subject in which I was weak. There are some really good primers on federal sentencing, reviews of evidence, search and seizure updates, etc.
    While we are on the topic of the Advanced Criminal Law CLE Course, I found that attending that course prior to ramping up my studies for the exam was very useful—it is always a good immersion into the latest evolutions of Texas criminal law. Attendees usually receive a copy of Judge Newell’s paper, as well as digital or hard copies of the most recent Advanced Criminal Law papers written by experts from all over the state. There is also usually a panel discussion with past and present test writers to discuss preparation for and taking the examination. This session can be really helpful depending on the questions. Susan Anderson, whose outline for the TBLS criminal certification exam is discussed below, was on the discussion panel last year, and I found her input very informative.
    Next, I suggest downloading the Texas Disciplinary Rules of Professional Conduct and a copy of the Texas Lawyers Creed from the “ethics resources” of the State Bar website. These rules seem to be a favorite for the multiple-choice portion of the exam. In fact, there is a set or two of practice multiple-choice questions on the rules floating around. They are older, but they still seem to be relevant—and quite difficult. (I believe I fell victim to a professional conduct question in one of the essays, in fact.) Though the State Bar is revising the Disciplinary Rules this year, the 2016 rules are still up on the Bar website. At this rate, it doesn’t seem like the changes will be completed in time to incorporate them, but that may be a question to ask the panel at the Advanced Criminal Law Course. And while we are on the topic of the Disciplinary Rules, you might re-read Schultz v. Commission for Lawyer Discipline of the State Bar of Texas if you haven’t looked at it in a while.
     Finally, the Texas Criminal Defense Lawyers Association (TCDLA) has Susan Anderson’s Study Guide for the Criminal Law Board Certification Exam for sale on its website. The CD runs about $40 for TCDLA members and $100 for nonmembers. (If you can wait until the Advanced Criminal Law Course in the summer, I believe the guides were sold for about $30, regardless of membership.) As the title suggests, this is a study guide in outline form that thoroughly covers the topics on the test. From listening to other test-takers, I found that this outline has been a heavily used tool since it was published in 2008.  The guide is in its fifth edition, which seems to indicate that it is updated frequently.   
    I mention this outline last because it was a double-edged sword for me. It is a fantastic resource in the way the volumes of information and topics are organized; however, I found some small sections of material to be outdated and possibly inaccurate. But overall I found the outline extremely useful after I had read the codes for myself and made my own notes on certain topics. Reading the codes first helped me catch items in my outline that needed updating and provided a fast and organized way to review the mountains of information in the weeks leading up to the test.

Life getting in the way
The year before I took the test, time commitments and fear of taking a test for the first time in a decade were both significant roadblocks to certification for me. I had watched well-respected prosecutors and attorneys take the test without enough time to study or without being prepared for their first written test in 25 years. The subject matter clearly wasn’t the problem for these attorneys, but re-learning how to take a test was difficult. Nonetheless, for many reasons, I committed to take the Board Certification in April 2017.
    By mid-2017, I hadn’t started reading with purpose, thinking I had plenty of time, but then in July a pop-up twister hit our home in Fort Worth. A large tree snapped in half, and it was thrown through our roof, destroying seven rafters, filling our house with water, and starting an electrical fire. That was a very hard time. My wife, Stefani, and I and our two small children packed up and moved into extra bedrooms in my in-laws’ home. It was actually a lot of fun living as a big family, but it was hardly conducive to studying. I couldn’t very well tell my father-in-law to get out of his own living room or to keep the noise down, so I would wait until everyone was in bed to cram in some reading late at night. I would get up early most mornings too, including Saturday and Sunday, and I would stay late at the office or go in on the weekends to study.
    All of that is to say that life is going to get in the way of preparing for this test. It’s just a matter of what you are willing to do and sacrifice for it.
The test itself
The test is a one-day affair in Austin. (This year the test is on Monday, October 15.) There are two three-hour sessions, one in the morning and one in the afternoon. One session includes 100 multiple-choice questions worth two points each, and the other consists of three essays worth 100 points each (although the 100 points may be distributed in different ways depending on the essay).    
    The AT&T Executive Education and Conference Center is where the test has been administered the past few years. It’s a nice facility and good hotel that serves a pretty decent burger at midnight when you’re cramming. TBLS has a room block at the hotel with a discounted rate, and calling the hotel to book at that rate seemed a little more efficient than booking online. If you can’t book this hotel, there are a few others within walking distance.
    My suggestion is to take the test with a buddy, even though I actually had no intention of doing so. I had a bad cough from lack of sleep and allergies, and little did I know that my soon-to-be court partner, Tracey Kapsidelis, would sit down right next to me with snacks, Kleenex, pencils, scratch paper, and even ear plugs to share. She wasn’t having any of my coughing, either, and she began shoving cough drops down my throat so my coughs wouldn’t bother her or those around us. Tracey brought a new meaning to “clutch” that day. And if she hadn’t answered three hours’ worth of multiple-choice questions in less than two hours like a test maniac, it would have been perfect. When she got up to leave, I thought I had messed up my timing and nearly had a heart attack. (But thanks, Tracey. Test buddies rock!) A driving buddy to keep you awake and alert during the trek home after the test is also a decent idea. My court partner, Molly Davis, was my driving partner back from Austin, and she was a lot of help.  

The aftermath: relief and celebration
The feeling after taking this test was a similar to how I felt after the bar exam. I could immediately think of things I missed and some things I got right. However, I had absolutely no idea how I had done. I wouldn’t have been surprised to find out I failed, but I thought I answered some things really well. Some advice I received from one of our court chiefs was to refrain from talking about the test after I had taken it. It was good advice. No one wants to talk about it, very few people I spoke with felt confident in how they had done, and there was nothing I could do about my answers anyway. All I could do was wait.
    It takes three to four months to find out if you passed. These were long months for me. I had a debate with myself daily about my ability to take this test again if I failed. TBLS sends the results via email and U.S. mail. I received an email with my results while I was banished to work on the grand jury docket for my court team. I was buried in one of the million drug cases on the docket when I saw the TBLS email pop up. I tried not to look so I could prepare myself for bad news, but I saw the “Congratulations” greeting before I could hide the message. The most intense emotion I can remember feeling was relief. I did not have to take that test again! The relief was followed by joy and the desire to share the good news with my wife, but that didn’t go quite as I had expected. Stefani answered the phone and immediately started telling me what happened that morning, what trouble my child had gotten into at school, and that she had to go because a client was calling—all before I could say a word. I am pretty sure that what I was saying didn’t register with her on the phone, but all was well when we laughed about it at home that night (and celebrated the good news).
    She actually said, “Thank goodness you passed because we can’t do that test again.” She was right. This was definitely a family achievement. She kept the house and family running while I studied in the evenings, on weekends, late at night, and at every free moment. Without Stefani, I could not have passed this test. So a month after the results came out, my wife and I left the kids at home and attended the TBLS ceremony in Austin to swear in the new members. After that, I took her out for dinner and drinks with some close friends to celebrate.
    While this test did not transform me into some super lawyer overnight, I am glad that I decided to just jump into the journey. I feel a tremendous sense of accomplishment. I have a better understanding of the current state of the law, and I have more confidence in myself both inside and outside of the courtroom. But most importantly, as a Texas prosecutor I feel more prepared and empowered to seek the justice that the victims in my county deserve.