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Texas Appellate Law Blog

Civil Appellate Practice Tips, Resources, and News

Appellate Sections Once Again Co-Sponsoring SCOTX Event

Posted in Announcements, Texas Supreme Court

The Appellate Sections of the State Bar of Texas and the Austin Bar Association are co-sponsoring a program entitled “An Evening with the Texas Supreme Court.” This event—previously held in 2008, 2010, and 2012—will take place on Thursday, April 17, 2014, from 4:30 to 7:00 p.m. at the InterContinental Stephen F. Austin Hotel here in Austin. CLE credit (1.5 hours, .33 ethics) has been requested.

Chief Justice Hecht and Justices Green, Johnson, Willett, Guzman, Lehrmann, Boyd, and Devine will participate in a panel discussion about practice before the Court and other relevant issues. A cocktail reception will follow. Information about cost and how to RSVP is available here.

Prior versions of this event were highly informative and very well attended. I was privileged to serve as moderator in 2012, when I was both the sitting ABA Appellate Section Chair and a member of the State Bar Appellate Section Council. The Court has gone through significant changes since then. I would encourage all Texas lawyers to take advantage of this special opportunity to hear what the new chief justice and the Court’s other members have to say.

SCOTX: Postjudgment Interest—All Accrual Dates Are Not Created Equal

Posted in Appellate Practice, Opinions & Judgments, Procedure, Supreme Court Orders, Texas Supreme Court, Trial Courts

Statutes that appear clear are oft fraught with unanswered questions. This is unsurprising, as drafters cannot anticipate every scenario when crafting legislation. Falling into that vein, last week, the Texas Supreme Court decided a previously unaddressed question regarding the accrual date of postjudgment interest under the Texas Finance Code. In Long v. Castle Texas Production Limited Partnership (No. 11-0161), the Court determined the date from which postjudgment interest begins to accrue when remand mandates further evidentiary proceedings. The relevant code subsection, 304.005(a), while not the most elegant prose, adequately conveys its message as follows: “[P]ostjudgment interest on a money judgment of a court in this state accrues during the period beginning on the date the judgment is rendered and ending on the date the judgment is satisfied.” Read simply, the postjudgment interest meter starts running on the date the trial court renders judgment. But what happens when a trial court issues a second judgment on remand after accepting new evidence? Or, in other words, which judgment is considered the court’s rendered “judgment” under section 304.005(a)?

In examining this very question, the Court disagreed with earlier, intermediate appellate decisions and determined the answer depends on whether the trial court must reopen the record on remand. First, the Court revisited earlier precedent, an exception under the Texas Rule of Appellate Procedure 43.3, the Texas Finance Code, and rules of civil procedure to determine that “judgment” meant final judgment. The Court then applied similar authority to outline different scenarios and decide that the accrual date differed depending on whether the trial court must reopen the record. To illustrate the first scenario, the Court recounted the general rule that postjudgment interest accrues from the date of final judgment. It then discussed a limited exception under Rule 43.3: postjudgment interest accrues from the date of the trial court’s original, erroneous judgment when an appellate court renders (or could have rendered) judgment on appeal. Lastly, as a departure from earlier appellate decisions, the Court held that, under circumstances like these, the accrual date coincides with the judgment issued after the trial court reopens the record on remand. The Court reasoned that, in the last scenario, remand for retrial or introducing more evidence would require a different result because the trial court did not originally possess a sufficient record to issue a final judgment.

As a bonus, the Court provided lower courts with some procedural guidance regarding which court, the trial or appellate, decides whether the record needs reopening on remand, and when that court should determine when the record is reopened. Due to the limited nature of an appellate record, the Court held that the trial court should determine whether the record requires reopening on remand; subject, of course, to review on appeal of the final judgment. It also concluded that the trial court should make that determination at the time the appellate court remanded the proceeding.

In the end, the Texas Supreme Court definitively answered a legal question and helped further elucidate the postjudgment interest statute. It also provided some procedural guidance to lower courts.

I, Juror No. 3

Posted in Articles, Technology, Trial Courts

Since I became a practicing lawyer, I’ve been called for jury duty four times: twice in Dallas County (where I lived from 1997 to 2003), and twice in Travis County (where I live now). This past week, I served my second stint as an actual juror.

My first experience as a juror was in Dallas. It was a felony assault case with facts better suited to a soap opera than a criminal trial. As we began deliberating, one juror announced that he didn’t care what any of us said; he didn’t trust the Dallas Police Department, and he would never vote to convict the defendant. The gentleman stuck to his guns, even though everyone else thought the defendant guilty. Just as we were about to send out a note telling the judge we were deadlocked, we were notified that the prosecution and defense had reached a plea agreement. Thus ended our service.

Last week’s case—also a criminal matter—was tried to a verdict. I don’t want to reveal too many details, but I left with a few observations worth sharing and throwing out for discussion:

  • Don’t assume you’ll be struck just because you’re a lawyer. I was the second civil-practice lawyer seated on this jury. Each side only had 30 minutes for voir dire, which provided a very limited opportunity for vetting and ferreting out the potential jurors the parties might find undesirable. We had a Travis County Sheriff’s officer and an Austin Police Department officer—both in uniform—on the venire. Neither of them made it on the jury.
  • Criminal cases need better pretrial procedures. Considerable time was wasted sending the jury in and out because the parties didn’t seem to know who the other side’s witnesses were going to be or what exhibits were going to be offered into evidence. The trial judge (who I think did a first-class job) had to take up a lot of objections that could have been dealt with up front.
  • Some cases can be tried without over-relying on technology. The prosecution, led by a young lawyer, used PowerPoint and video evidence, but relied mostly on police officers’ testimony. The defense, led by a very seasoned attorney, tried the case by pen and legal pad. Both were legitimate approaches for what turned out to be a simple case.
  • Advocates should get to the heart of the matter and avoid redundancy. Some of the evidence was repetitive, of questionable relevance, and arguably hurt the party putting it on. When the jury starts rolling its collective eyes, watch out. A jury that feels like you’re wasting its time can turn on you.
  • Explain uncommon terms. The name of a physiological condition was repeated throughout the trial, but neither side defined it or told the jury how to spell it. Trial lawyers should make sure the jury understands what you’re referring to and its significance to the case.
  • Criminal jury charges are much simpler than civil charges. At the guilt/innocence phase, we received a three-page jury charge instructing us on the law and asking us to render one of two possible verdicts. As I read the charge, I felt a bit sorry for civil juries, which must deal with complex instructions and definitions and often have pages upon pages of questions to answer. (I should know, because I’m frequently the one who drafts them.)

Several lawyers have told me they would like to serve on a jury. If called, it’s an experience I highly recommend, despite lost time at work and other inconveniences that come along with it. Getting first-hand experience as a juror provides a unique perspective of the system we are sworn to support and a renewed appreciation for our respective roles in that system.

Brown Appointed to Fill Hecht’s SCOTX Seat

Posted in Announcements, News & Politics, Texas Supreme Court

Governor Perry has appointed Fourteenth Court of Appeals Justice Jeff Brown (pictured) to fill the seat being vacated by Justice Nathan Hecht, who in turn is replacing departing Chief Justice Wallace Jefferson. All of these moves officially become effective on October 1, 2013.

Brown began his career clerking for Supreme Court Justice Jack Hightower, then worked at Baker Botts before taking the bench, first as a Harris County district judge and then an appellate justice. He ran for the Supreme Court in 2010 in what wound up as a six-way Republican primary race filled with qualified candidates.

Justice Brown will hit the statewide campaign trail immediately, as he must run in the 2014 general election to retain his new seat. Chief Justice Hecht, Justice Phil Johnson, and Justice Jeff Boyd will also be on the ballot next November.

I am proud to say I knew Justice Brown way back when—I clerked for Justice Raul Gonzalez when he started out with Justice Hightower and have enjoyed following his career since. The Court is getting an excellent jurist who will work hard and treat everyone fairly. Congratulations, Justice Brown!

Related links and posts:

How to Handle Cross-Appeals

Posted in Appellate Practice, Articles, Briefs, Fifth Circuit, Oral Argument, Procedure, Texas Supreme Court

Yesterday afternoon, I spoke at the Advanced Civil Appellate Practice Course, an annual program sponsored by TexasBarCLE and the State Bar Appellate Section. My topic was “How to Handle Cross-Appeals.”

I promised the attendees that I would make my paper and slides available over the web. Clicking the links should open each one in a new window. I hope they are helpful to anyone considering or responding to a cross-appeal in Texas state court.

I have long advocated for adoption of a Texas equivalent to Federal Rule of Appellate Procedure 28.1. That rule—which establishes a uniform method for handling cross-appeals in federal appellate courts—cuts the total number of briefs from six to four, specifies type-volume limits (word counts), and sets a default briefing schedule. I urge the Texas Supreme Court to simplify Texas cross-appeal practice and adopt a similar rule.

Chief Justice Jefferson to Leave SCOTX

Posted in News & Politics, Texas Supreme Court

Chief Justice Wallace Jefferson (pictured) has announced that he will be departing the Texas Supreme Court effective October 1, 2013. The Texas Lawbook, a Dallas Morning News affiliate, first reported the announcement. It appears that Chief Justice Jefferson, like others who have left the Court in recent years, will return to private practice.

As noted at the Supreme Court of Texas Blog, Chief Justice Jefferson’s decision and timing could allow Governor Perry to make two two appointments to the Court. First, the Governor will appoint Chief Justice Jefferson’s replacement. If that person is a sitting SCOTX justice—and, presumably, he or she will be—the Governor will then appoint someone to fill the seat vacated by the newly appointed chief justice. Because they must stand for election in 2014, the appointees will be campaigning to keep their new jobs from day one.

Chief Justice Jefferson has served on the Supreme Court since 2001 and in his current position since 2004. The Court’s first African-American justice and chief justice, he has steered the Court steadily into the electronic age and has been a staunch advocate for judicial selection reform and judicial pay increases. Jefferson’s predecessor, former Chief Justice Thomas R. Phillips, has been quoted as saying about him: “I can make a strong argument that he is the best chief justice in my lifetime.”

Updates:

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It’s That Time of (the Fiscal) Year

Posted in Appellate Practice, Opinions & Judgments

Clients frequently ask appellate lawyers, “How long until the court makes a decision?” It’s a question we all struggle with because the number of variables is too great to allow anything but a semi-educated guess. The period is measured in months, if not years.

The fiscal year for Texas appellate courts ends on August 31. The courts usually release a large number of opinions in August to avoid having those dispositions carried over to a new budgetary and measurement cycle. So, if you have a case you’ve been wondering about, now is the time to keep your eye on the orders lists or register for CaseMail (which everyone should already be doing under e-filing rules). As part of the ongoing transition to TAMES, several courts have implemented an e-mail notification system that notifies the user the day of the event, a substantial improvement over CaseMail’s next-day notice.

My oldest case was docketed in 2009 and submitted on briefs in September 2010. You read that right: We’re coming up on the third anniversary of the case being fully briefed and ripe for decision without oral argument. Some of the delay can be attributed to court turnover—we are now on our third assigned panel—and some may have resulted from the case being one of first impression, but this sort of time lag is difficult to explain to the client. The only educated guess I have left is that the panel is split, and it is taking time for the majority and dissenting opinions to address each other. Meanwhile, I’ll be keeping an eye out this month. If we don’t get a decision before September 1, I might just file a motion for oral argument.

Justice Jack Hightower, 1926-2013

Posted in Announcements, Texas Supreme Court

Texas lost another legal giant today with the death of retired Texas Supreme Court Justice Jack Hightower. The Court’s official announcement, courtesy of Osler McCarthy, appears here.

I was a brand-new law clerk—a position then known as “briefing attorney”—during Justice Hightower’s last few months on the bench. SCOTX is one of the few high courts that allows law clerks to attend internal court conferences, and I remember Justice Hightower’s views being widely respected around the conference table. He did not speak up very often, but when he did, everyone listened.

Justice Hightower lived an incredible life of service, and he encouraged others to do the same. One of the lawyers who worked in his chambers that final year, Jeff Brown, has gone on to become an appellate judge after spending several years on the trial bench. When Justice Hightower retired in early 1996, his replacement was Greg Abbott, who has served as Texas Attorney General since 2002 is and now a leading gubernatorial candidate.

We would all do well to follow Justice Hightower’s example. May he rest in peace.

What Do “The Last Days of Big Law” Mean for Boutique Firms?

Posted in Appellate Practice

Noam Scheiber’s recent New Republic article, “The Last Days of Big Law,” has been buzzing over my social media stream for the past week or so. It’s a pretty sobering read, although it hasn’t gone uncriticized.

For example, in “Don’t Bury Big Law Just Yet,” The American Lawyer‘s Robin Sparkman wrote that “[r]umors of [the giant law firms'] demise are greatly exaggerated.” Slate‘s Mark Obbie previously reached the same conclusion in  “The Fascinating Vampire Squids of Law,” where he riffed off the New Republic cover’s Breaking Bad theme. (7/30/13 Update: Scheiber responded to his critics here.)

I have always been thankful for the opportunities big-firm life provided early in my legal career, but Scheiber’s article—prophetic or not—made me glad to have departed that life when I did. That was seven years ago this month, around the same time, according to Scheiber, that economic realities began changing the way clients view legal services in general and the Big Law model in particular.

For years, I have believed that resistance to increasing Big Law rates and greater relative demand for specialized (non-commoditized) legal services would benefit boutique firms and solos catering to a defined niche. In my practice area, for example, the market no longer seems to support training young associates to become appellate specialists. Sophisticated clients don’t want to pay big-firm rates for partner-level work, much less for the learning curve younger lawyers must go through to become competent appellate practitioners. In recent years, I’ve watched contemporaries leave big firms to start their own shops, either because their firms couldn’t support them any longer or because they saw the same opportunity I did.

These trends leave me wondering: Who at Big Law is going to oversee significant appellate matters when the vanguard retires or otherwise moves on? Firms often recruit former appellate judges to join their ranks after leaving the bench, and that—like a mid-season Major League Baseball trade—may be a reasonable stop-gap. But without teams of appellate experts housed at big firms on a long-term basis, in-house counsel’s continued reliance on the “CYA factor” when deciding who will handle their company’s high-level appellate work would no longer seem viable.

Will the continuing evolution of Big Law, in whatever form, benefit specialized boutique firms? Big Law’s life story is still being written, but I still say yes.

Related posts:

Ralph H. Brock, 1948-2013

Posted in Announcements, Technology

I was saddened to learn that Ralph Brock—the first chair of the State Bar Appellate Section and one of my predecessors as editor of The Appellate Advocate—passed away on July 14, 2013.

Ralph was extremely personable and was in many ways ahead of his time. In recent years, he served as chair of the State Bar Computer and Technology Section (whose announcement appears here) and on the State Bar Web Services Committee. Future lawyers will benefit from his work with these groups. Most notably, Ralph was instrumental in making commonly used statutes and rules available to Computer and Technology Section members at no cost via the Section’s iPad app.

Rest in peace, Ralph. You will be missed.

Update: A 2005 interview Ralph gave as part of the Appellate Section’s history project is available here.