Posted in Announcements, Blogs & Blogging, Technology

Continuing to Evolve

D. Todd Smith

4203965136_285096c091_oReaders may have noticed some changes around here. Allow me to tie them together with a brief explanation.

New Design

More and more users are accessing the internet through smartphones or tablets—a trend that is sure to continue. My friends at LexBlog have thus rebuilt the site to be mobile-friendly. I am very pleased with the simple yet stylish new look and how it renders on both desktop and mobile devices.

New Contributors

Since launching this venture in January 2007, I have transitioned from solo appellate specialist to leader of a four-lawyer appellate boutique. I am privileged to work with some really smart, insightful people. It only seems right to showcase them here.

New Strategy

Running this site could be a full-time job if I could figure out a tasteful way to monetize it. Failing that, I’ll keep practicing law. But the ebb and flow of law practice creates challenges when it comes to regularly posting good content. With other contributors on board, readers can expect to see something new each week.

These changes are significant but positive. Others are on the horizon, if I can implement them successfully. To keep up with the latest, subscribe by RSS or email, or follow us on Twitter at @TXAppellateLaw.

Image courtesy of Flickr by raneko.

Posted in Interlocutory Appeals, Litigation Support, Motions, Procedure

Certificates of Merit: Don’t Let Your Lawsuit End Before It Begins

Maitreya Tomlinson

9607147409_82d5f52659_oClients have called upon me with increasing frequency regarding certificate of merit issues. While somewhat innocuous, I have found that real danger lurks behind the certificate of merit requirements contained in Chapter 150 of the Texas Civil Practice and Remedies Code. Noncompliance, for example, may lead to dismissal with prejudice. Because of the potential harm and the frequency of interlocutory appeals concerning Chapter 150 issues, it makes sense to consult with an appellate professional with experience in these matters before filing a certificate.

In 2003, the Legislature enacted Chapter 150 as a threshold requirement to demonstrate merit in suits against professionals like engineers and architects. The Legislature made some notable changes to the statute in 2005 and 2009. Although the Legislature has diligently refined Chapter 150, it has never established the standard for a trial court to employ when deciding to dismiss the case with or without prejudice. And, appellate courts have yet to help guide trial courts in making these decisions.

Nonetheless, between the statute’s relatively frequent revisions, defending parties’ willingness to challenge a certificate’s adequacy, and the built-in interlocutory appeal of grants or denials of motions to dismiss, Chapter 150 jurisprudence is ever evolving. The law’s developing nature has also spawned some unresolved inconsistencies between different intermediate appellate courts that could trip up unwary filers.

In my experience, filers could avoid most pitfalls by making simple modifications to their certificates of merit before filing. Further, I believe involving appellate professionals early in the process can also provide the client with a jump on what often leads to defending against motions to dismiss and participating in interlocutory appeals. It also helps prevent leaving the suit’s fate in the trial court’s relatively unfettered hands to decide whether the court should dismiss your otherwise meritorious suit with prejudice.

Image courtesy of Flickr by Joe Haupt.

Posted in Appellate Practice, In-House Focus

In-House Focus: Steer Clear of Career-Limiting Moves

Laura P. Haley

16323987936_f7aaf16f2a_oOne bright spring day in 2007, I took my former client out to lunch to pitch my new firm. By the end of lunch, my client hired me as his new in-house litigator. I had never considered a corporate counsel job before and had no idea what to expect. This post, and those I’ll write over the next few weeks, will discuss what I learned, both from an inside and outside counsel perspective.

Winning Your Case While Avoiding a CLM

Litigators can be odd members of in-house legal teams, particularly if they come straight out of a litigation-intensive firm. My former firm was probably typical for a litigation boutique: a small collection of very passionate, competitive law nerds. So my entry into the quiet, corporate legal structure presented me with frequent opportunities for career-limiting moves, affectionately known as CLMs.

One of my early CLMs was shushing the CEO. At the time, we were on a conference call with our insurers, discussing litigation against a group of plaintiffs with a $100 million damage model. Within two months of the call, we tried the case and zeroed out the plaintiffs. While it was a huge legal victory, I learned it was equally important not to give the CEO “the hand.” Balancing passionate representation and patience with corporate decision-makers is critical for in-house litigators.


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Posted in Appellate Practice, Technology, Texas Supreme Court

Arbitration in Attorney Fee Agreements After Royston v. Lopez

Brandy Wingate Voss

14417293308_b8b9236397_oI had the pleasure of briefing and presenting argument to the Texas Supreme Court in Royston, Rayzor, Vickery & Williams, LLP v. Lopez (Nos. 13–1026 and 14–0109, opinion available here), a case dealing with the enforceability of arbitration clauses between attorneys and clients. Earlier this week, I participated in a webcast about the case titled “Engagement Letters/Arbitration & Beyond: Aftermath of Royston v. Lopez,” which was broadcast through TexasBarCLE.

The Texas Supreme Court’s decision reaffirmed the general principle that arbitration clauses between attorneys and clients are not per se unenforceable, but it also clarified the burden of proof and the standard for unconscionability in proceedings to compel a client to arbitration. The primary holdings were: (1) the attorney-client relationship does not alter the burden of a party opposing arbitration to present evidence of a valid defense to arbitration; (2) a limited scope arbitration clause is not substantively unconscionable merely because certain claims must be arbitrated, while others can be litigated in court; and (3) there is no substantive requirement for a lawyer to explain, orally or in writing, an arbitration clause to the client in order for the clause to be enforceable. Because there are no disciplinary rules that specifically address an obligation to explain an arbitration clause to the client, in her concurrence, Justice Guzman appeared to implore the bar to study the issue and develop rules to govern these types of agreements.

In Ethics Opinion 586, the Texas Professional Ethics Committee recommended that attorneys make certain disclosures to clients under certain circumstances. For example, where the client is sophisticated, disclosures may not be necessary. Where the client is unsophisticated, the Committee recommended discussing the benefits and disadvantages of arbitration with the client. Practically speaking, arbitration clauses are found in nearly every consumer contract, and it is hard to imagine a client that has no experience with them. And in fact, arbitration could benefit an unsophisticated client who decides to proceed pro se, given the relaxed procedural and evidentiary rules that apply in arbitration and the limited discovery to which the client would have to respond. Even so, the safest course of action for attorneys considering including an arbitration clause in an engagement letter is to consult this advisory opinion and determine whether to make disclosures, at least until the State Bar takes Justice Guzman’s suggestion and adopts rules governing the use of arbitration clauses. 

Image courtesy of Flickr by


Posted in Appellate Practice, Litigation Support, Procedure, Trial Courts

Texas MDLs and Appellate Lawyers

Brandy Wingate Voss


Last week, I spoke at TexasBarCLE’s Advanced Civil Appellate Practice Course about transfer proceedings before the Texas Judicial Panel on Multidistrict Litigation. For anyone interested, my presentation slides appear at the end of this post.

MDLs may not seem all that relevant to appellate practice at first blush, but it is important for appellate lawyers to understand the transfer process. When complex litigation arises involving multiple parties, there is always a possibility of multiple lawsuits being filed.  An appellate lawyer should be prepared to advise clients and their trial lawyers about the availability of an MDL because the strategy for filing or defending against a transfer motion must be implemented from the outset of the case. MDL transfer proceedings are particularly suited for appellate lawyers because the page limits (yes, page limits, not word count limits) are short, the cases tend to be complex, and the Panel on Multidistrict Litigation is comprised of appellate justices and administrative judges. The skills required to prepare a succinct but persuasive appellate brief apply well in the MDL setting.

Image courtesy of Flickr by Norman B. Leventhal Map Center.


Posted in Technology

Social Media for Lawyers—and Judges

D. Todd Smith

8583949219_d565d18edf_oYesterday, I spoke to a group of appellate lawyers and judges about social media. For anyone interested, my presentation slides appear below.

I always learn something new when preparing to give a CLE presentation. In this instance, it was interesting to look at Twitter, Facebook, LinkedIn, and similar outlets from a judge’s perspective. Here are a couple of upcoming developments that Texas judges participating in social media should be on the lookout for:

  • A decision later this month in 405th Judicial District Court Judge Michelle Slaughter’s challenge to a public admonition she received from the State Commission on Judicial Conduct after posting on Facebook about an ongoing case.
  • A law review article to be co-authored by Texas Supreme Court Justice Don Willett—literally the Tweeter Laureate of Texas—that will guide judges who are nervous about using social media and assist those tasked with applying current ethics rules to modern communication tools.

In the meantime, I commend John Browning’s thoughtful overview—recently published in Texas Lawyer—of the unique issues judges face.

Image courtesy of Flickr by Jason Howie.

Posted in Appellate Practice, Articles, Jury Charges, Litigation Support, Motions, Trial Courts

An Appellate Lawyer Makes a Trial Team Better

D. Todd Smith

16844834832_f13124e85c_oA while back, the folks at Texas Lawyer invited me to submit an article on how appellate counsel may play a supporting role in the trial court. The article is now available online and will appear in next week’s print edition.

In the article, I focus on four areas in which an appellate lawyer can support trial counsel, particularly in jury cases. (Here, I will add a fifth area that comes up in bench trials, although the article doesn’t discuss it.)

  1. Theory, strategy, and error preservation
  2. Dispositive motions
  3. Jury charges and formal charge conferences
  4. Post-trial motions and judgment formulation
  5. Requesting and preparing proposed findings of fact and conclusions of law

As I conclude in the article, trial lawyers and their clients should consider retaining experienced appellate counsel to handle these sorts of tasks and perhaps even sit second or third chair at trial. This arrangement allows trial lawyers to focus on what they do best and thus serves the client’s interests.

What would you add to the list of ways appellate counsel can help a trial team?

Image courtesy of Flickr by Got Credit.

Posted in Announcements, Appellate Practice

As Summer Ends, a New Appellate Season Begins

D. Todd Smith

1385793801_d8641c07c1_oWith the sun setting on summer, early September is shaping up to be a busy time for Texas appellate practitioners and court watchers.

Texas Supreme Court Returns from Summer Recess

Although the Texas Supreme Court will issue orders every Friday in August and hold conference late in the month, it is caught up on opinions in argued cases—for the first time ever—so we’re not likely to see the usual flurry of opinions before the fiscal year ends on August 31. However, the intermediate appellate courts can be expected to turn out more opinions in August as they try to clear older cases and avoid carrying them into another statistical period.

When the calendar turns to September, the Court will dive right in and hear oral arguments the first three days of the month. First up is the school finance case, Williams v. The Texas Taxpayer & Student Fairness Coalition, et al., which will take up an entire argument setting.

Advanced Civil Appellate Practice Course

TexasBarCLE’s annual Advanced Civil Appellate Practice Course will take place on September 10-11, 2015 here in Austin. The State Bar Appellate Section is once again co-sponsoring the event.

Smith Law Group is privileged to have two presenters on the program this year. Brandy Wingate Voss will speak on multi-district litigation, and I will be addressing lawyers’ and judges’ use of social media. The seminar covers a host of other timely topics related to appellate practice and is always well worth the price of admission. Discounts are available to those registering by August 27 and for attorneys licensed five years or less.

John Hemphill Dinner

The Texas Supreme Court Historical Society is holding its annual John Hemphill Dinner on September 11, 2015. Senator John Cornyn—a former Texas Supreme Court justice and Texas Attorney General—is this year’s keynote speaker. The Hemphill Dinner has typically taken place in June, so this is a pretty significant schedule change.

Texas Supreme Court Breakfast

A similar schedule change has been made for the 2015 Texas Supreme Court Briefing Attorney/Staff Attorney Breakfast, which is now set for September 12, 2015. Supreme Court alumni should watch for an invitation to this event, which I understand will be going out soon.

Image courtesy of Flickr by Peasap.

Posted in Appellate Practice, Appellate Practice and Procedure Course, Blogs & Blogging

Appellate Practice and Procedure Lesson 8: Tips and Strategies for Marketing an Appellate Practice

D. Todd Smith

BlogThis post features the video and slides for the eighth and final lecture in my Appellate Practice and Procedure course. The presentation appears after the jump.

Appellate law can be a very difficult practice area to break into. Because legal writing ability is an absolute necessity, those with law review and judicial clerkship experience have an advantage. After that, the major keys to success are getting the word out about who you are and what you’re doing, developing relationships with lawyers and others in a position to refer cases to you, and doing good work.

Acceptance of social media as a legitimate marketing tool has changed the face of legal marketing. Focused blogging and social media efforts can pay huge dividends to someone just starting out, but they won’t replace traditional marketing techniques entirely. Face-to-face networking helps reinforce relationships developed through social media, and vice-versa. The trick is to position yourself as an expert, engage those likely to need your services, and offer something of value without overtly selling yourself. Continue Reading

Posted in Appellate Practice, Briefs, Fifth Circuit

Short-Citing to the Record in the Fifth Circuit

D. Todd Smith

I received a copy of this letter in one of my cases:

Screenshot 2015-03-31 14.51.46

What’s wrong with using the short citation form “id.” when citing the record? As I wrote about here, the Fifth Circuit recently standardized the format for citing electronic official records on appeal to require the short form “ROA” followed by volume and page. The court made this change after acquiring the internal ability to generate hyperlinks to the record when uniformly cited, allowing judges ready access to pages they may find important. While the prescribed “ROA” cite tells the program where to go, “id. apparently does not.

The approved format for citing the record in the Fifth Circuit is available in Appendix Form 7 to the court’s local rules and internal operating procedures, as published with the Federal Rules of Appellate Procedure effective December 1, 2014.