Posted in Appellate Practice

Second Bites at the Summary-Judgment Apple (Part I)

Laura P. Haley

4029472606_144a5580fc_oAll litigators file or respond to dispositive motions, including motions for summary judgment. Dispositive motions are an opportunity for trial attorneys to implement their trial strategy, using the facts in their cases to gain a tactical advantage, whether by eliminating claims or defenses, educating the judge, or poisoning the well. But dispositive motions also require litigators to consider their appellate strategy and to draft and argue motions and responses so that they are in the best position possible on appeal.

If you are a trial attorney who responded to a summary judgment motion, you lost, your client wants to appeal the trial court’s ruling, and you have limited experience filing appeals, I wrote this post, and the next, for you. Continue Reading

Posted in Appellate Practice

A Law Student’s End-of-Summer Clerkship Report

D. Todd Smith

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Editor’s Note: The following is a guest post from Brian Wortham, who completed a summer clerkship with our firm this week. Brian is a second-year student at St. Mary’s University School of Law.

After surviving my first year of law school, I was set to begin the time-honored tradition of finding a summer clerkship. I received an opportunity to interview with Smith Law Group, an appellate firm in Austin. During the interview with Todd Smith, Managing Partner, and Maitreya Tomlinson, Partner, we discussed how they had never had a clerk before, so this would be a first for everyone. Todd called me a week later with the good news that they would like me to serve as their “guinea pig.” I was excited, yet also felt the pressure to succeed so they would feel comfortable to hire a second clerk next summer.

On my second day, Todd gave me an assignment to draft, a “No Evidence Summary Judgment.” After asking what that was, I began to research the motion. I believe in the “sink or swim” motto, and it felt good to be working on something real rather than a theoretical class exercise. It felt good, until I looked at the revised product. I could recognize a few of my words, but for the most part, Todd had re-written the motion. Needless to say, I felt like I had sunk. One thing Todd said all summer is “I need to remember what I knew after my first year of law school.” Looking at it that way helped when comparing my limited experience with his twenty years as a lawyer. While I have so much more to learn, I noticed more of my own words being kept in motions as the summer progressed.

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Posted in Litigation Support

Confessions of a Litigation-Support Lawyer

D. Todd Smith

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I have a confession to make: I’m doing a lot of litigation-support work these days. And I like it.

In one context, the phrase “litigation support”—like “contract lawyer“—can have an almost-negative connotation. It might imply document review, presentation assistance, or other services that are not high revenue generators or don’t require a law license at all.

The phScreenshot 2016-08-07 16.21.24rase has a far different meaning to appellate practitioners. I explain this second context in the short guide, Five Ways an Appellate Lawyer Can Make Your Trial Team Better, which is available for free through the link.

Some very capable folks I know use the phrase “freelance lawyer” to distinguish themselves from what we sometimes think of as contract lawyers. “Litigation support” accurately describes some things appellate lawyers do when they aren’t reviewing voluminous appellate records and filing appellate briefs. Until I think of something better to call it, I’ll just have to defy one perception of the label.

Image courtesy of Flickr by Mon Œil.

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Posted in Mediation/ADR

Using the Evaluative Approach in Appellate Mediation

D. Todd Smith

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Last week, I spoke to the Austin Bar Association ADR Section about mediating cases on appeal. In my talk, I explored the differences in perspective between pre-trial mediation, in which most everything is in flux, and post-trial or appellate mediation, where a party has usually won or lost and the variables have shifted toward certainty. From there, I discussed the potential advantages of using an “evaluative” mediator knowledgeable about the appellate courts, the law, and the evidence.

Most mediators use a facilitative approach to help the parties arrive at their own proposals and potential solutions. The evaluative approach allows a mediator to more directly assess the relative merits of each side’s case and propose compromise based on the law and predicted outcomes. If used properly, I believe the evaluative approach can help parties resolve a dispute that otherwise could take years to work its way through the appellate system.

Appellate mediation is a service I’m now offering in my practice. If you have a case headed for appeal and would like to explore working with me as a mediator, please feel free to reach out to me directly.

Posted in Courts of Appeals, Rehearing

Motions for Rehearing or Reconsideration En Banc: Why Bother?

Maitreya Tomlinson

6324990_5dc95cc88a_oWhile appearing rhetorical, there is a very good reason to bother. My firm recently turned an appellant’s partially favorable result into full relief on rehearing. In doing so, we utilized the Texas appellate procedure rules, which allow parties to request that intermediate appellate courts reexamine their decisions: either by filing a motion for rehearing or a motion for reconsideration en banc.

Although not unicorn-like in frequency, Texas intermediate courts of appeals infrequently grant these motions. The statistics vary depending on the year and the specific court of appeals. However, research indicates that the success rate can be less than 20% and in many instances under 10%. Less than 10% is a daunting statistic, which would deter anyone who is accustomed to playing the odds. Continue Reading

Posted in Appellate Practice, Jury Charges

Soaking Up Some CLE

D. Todd Smith

IMG_1023I spoke today at TexasBarCLE’s Soaking Up Some CLE Program on South Padre Island—one of my favorite places to visit. My topic was “Jury Charges in Commercial Cases.” For anyone interested, my slidedeck appears here.

Today was the first time I’ve presented on this particular topic. As always, I learned a lot getting ready for it. I look forward to refining my presentation and giving it again.

I also took the opportunity to visit our new Rio Grande Valley office in Harlingen while in that part of the state. My firm has had a Valley office for more than five years now, and we enjoy the work we do down there, particularly in the Thirteenth Court of Appeals. I look forward to visiting more often.

Posted in Announcements

An Appellate Lawyer Walks Into a Bar…

D. Todd Smith

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No, the headline isn’t a lead-in for an appellate lawyer joke. In all seriousness, I’m announcing my nomination to run for treasurer of the Austin Bar Association. This race will be contested, as one other candidate was also nominated to appear on the ballot.

Election as treasurer would put me on a path to becoming Austin Bar president for 2019-2020. The list of those who have held that position over the past 100-plus years includes some of Austin’s finest lawyers and judges. Almost none of them practiced appellate law as it exists today. Over the past twenty years, only one was board-certified before taking office.

I’m a busy appellate lawyer and the managing partner of my firm. So why do I want to take this on? The answer is simple. I believe in the Austin Bar’s mission of enhancing the legal profession, the administration of justice, and the community through education, networking, and public service. And I attribute much of my success as a lawyer to the connections I have made through this fine organization over the past decade. For me, the question really is, why wouldn’t I? It’s a great opportunity to give back.

Image courtesy of Flickr by w.marsh.

Posted in Appellate Practice

Are All JNOV Deadlines Created Equal?

Maitreya Tomlinson

163570784_b962c26d1e_oAs a young attorney, others advised me that, barring conflicting Texas Supreme Court precedent, Texas intermediate-appellate court holdings constituted the law of Texas. Naturally, with 14 appellate districts covering the great expanse we call Texas, there is ample room for disagreement between those districts. These disagreements can, in turn, set potential traps for litigants. Among other things, good lawyers earn their money by recognizing where these traps lie. (They also earn their keep navigating the maze of residual Latin woven in postjudgment motions like a motion for judgment non obstante veredicto, more commonly referred to as a judgment notwithstanding the verdict or JNOV). Continue Reading

Posted in Original Proceedings

What’s the Expiration Date on That Mandamus?

Maitreya Tomlinson

It doesn’t come up very often. In fact, as I type this, a number of soon-to-be filers are frantically drafting their petitions, compiling their records, and perfecting their emergency motions in reaction to a recent ruling. Whether to salve the recent wound of an adverse ruling or to preserve a fleeting right, parties typically file mandamus petitions soon after the precipitating event. Some clients have asked me, however, about the deadline to file a mandamus petition.

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Posted in Fifth Circuit, Motions

No More Telephone Briefing Extensions in the Fifth Circuit?

D. Todd Smith

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In this post from several years ago, I expressed how pleased I was with the informal procedure by which the United States Court of Appeals for the Fifth Circuit accepted and granted routine briefing extension requests. At the time, the Court allowed the clerk’s office to approve short, unopposed extensions over the telephone and had dispensed with any requirement that counsel follow up with a confirmation letter.

Recently, I heard that the Fifth Circuit had changed this practice and no longer accepts extension requests by telephone. Needing an extension in a case I’m working on, I decided to see for myself.

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