Posted in Appellate Practice, Third Court of Appeals

An Evening with the Third Court of Appeals, 2017 Edition

Maitreya Tomlinson

Screenshot 2017-05-05 15.01.31Yesterday, the Austin Bar Association’s Civil Appellate Law Section hosted a program entitled “An Evening with the Third Court of Appeals” at Austin’s InterContinental Stephen F. Austin Hotel. My firm, Smith Law Group, was among the event’s sponsors.

This event was a natural sequel to the well-received peek behind the proverbial curtain when the Court, months ago, opened its offices to host local attorneys at the “Breakfast with the Third Court of Appeals.” As usual, the event was well attended by the Court, its staff, and practitioners. The Third Court of Appeals has consistently engaged the legal community and events like this demonstrate this fact.

While primarily a chance to socialize with the Court, Chief Justice Jeff Rose gave some remarks and introduced his fellow attending Justices. The evening offered attendees a chance to informally interact with our judiciary. Thanks to my fellow Civil Appellate Section Council members and the Third Court for ensuring that this and other programs are well-attended and enjoyable opportunities to maintain connections in our local legal community.

Posted in Appellate Practice, Technology

[Tap…Tap…Tap] Is This Thing On?

D. Todd Smith

After a decade of blogging, I’m still amazed how one simple post can spin off new opportunities.

Back in November, I wrote about how I’m using my iPad Pro during oral arguments. As a direct result of that post, I was:

  • featured on iPhone JD (a site I highly recommend to anyone using iPhones or iPads in their law practices);
  • asked to turn the post into an article for the Texas Bar Journal; and
  • invited to speak to trial lawyers about going paperless at a traveling roadshow CLE.

More recently, legal tech consultant Brett Burney invited me to appear on his excellent new podcast, Apps in Law, to discuss iThoughts, the mindmapping app I mentioned in the post. I had heard Brett speak before and have a lot of respect for him, so I was happy to say yes.
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Posted in Appellate Practice

Bench Bar Beyond: The Future is Now

D. Todd Smith

Screenshot 2017-03-28 14.00.53The Austin Bar Association is accepting registrations for Bench Bar Beyond, its annual conference with the local judiciary. As the name and artwork suggest, the theme this year is futuristic; attendees are invited to explore topics and current trends in the legal profession that will impact our future as lawyers.

I’m slated to moderate two breakout sessions on appellate law. One will be a “dos and don’ts” discussion with Third Court of Appeals Justices David Puryear, Melissa Goodwin, and Cindy Bourland. The other is entitled Appellate Practice and Appellate Judging in the 21st Century and will feature Third Court Chief Justice Jeff Rose, Justice Scott Field, and Blake Hawthorne, Clerk of the Texas Supreme Court.

This year’s program, which is being cosponsored by the AYLA Foundation, will take place on May 12, 2017 at the Austin Country Club, site of the recently concluded WGC–Dell Technologies Match Play golf tournament. More than thirty judges across the local court systems have committed to attend. The full program and registration information are available here.

Posted in Appellate Practice

How I Learned to Stop Worrying and Love Formal Bills of Exception

Maitreya Tomlinson


Appellate lawyers are the legal equivalent of a parent that you call to help navigate life’s uncertainties. In action, this means that appellate lawyers receive phone calls regarding obscure areas of law or rarely utilized procedures. The parent comparison suffers in that, unlike answering many parental questions, even well-seasoned appellate lawyers may have to research the question more deeply before dispensing advice. But either way, as parents or appellate lawyers, we know our input is important and we try to provide the best answer that we can.

Bill of Exception v. Offer of Proof

In that vein, lawyers have recently contacted me to ask about filing formal bills of exception. A formal bill of exception is a procedural device contained in Texas Rule of Civil Procedure 33.2. Like offers of proof, the Rule helps parties preserve, and demonstrate, harmful error by allowing them to supplement the record. Unlike offers of proof, parties file formal bills of exception when their trials are completed. After studying Rule 33.2 and making numerous inquiries, I realized that many lawyers have never filed a formal bill of exception. I also realized that many commentators merely recite the Rule’s language without discussing any gray areas or supplying insight into the Rule’s contours. Naturally, because many have not utilized Rule 33.2 and that the Rule’s plain language does not provide all the answers, there appears to be some confusion regarding formal bills of exception. Continue Reading

Posted in Appellate Practice, Oral Argument, Technology

More on iPads and Appellate Arguments

D. Todd Smith

Happy New Year!

After seeing my recent post on how I’m using my iPad Pro for appellate arguments, the good folks at the Texas Bar Journal asked if I’d like to publish a version of it in print. That version appears in the just-released January issue, an electronic copy of which is available here.

I’ve since received several messages from lawyers offering up how they use iPads and Mindmaps for argument. I’m encouraged to see others embracing technology in their preparation and presentation strategies. It’s affirming to hear that I’m not alone when I look at an old challenge a new way and try to change the way I do things for the better.

Readers may be interested to learn that Readdle, the company that developed PDF Expert for the iPad, recently released a new Mac version as well. I recently began testing PDF Expert 2 for Mac as an alternative to Adobe Acrobat and am very impressed so far. The killer feature is Readdle Transfer, which allows me to open a PDF on the Mac and the iPad simultaneously and sync edits made on either device instantly and without any conflicts that would require creating multiple versions of the document. When Readdle adds OCR capability and Bates numbering, the Mac version should give the considerably-more-expensive Adobe Acrobat software suite a run for its money among Mac-based law firms.


Posted in Appellate Practice

Demanding a Recount: Appealing Election Challenges

Maitreya Tomlinson

The recent election reminded me of a brush that I had with election-related appeals. A few years ago, I fervently drafted a brief in a primary-contest appeal under a looming deadline. As I neared completion, my pregnant wife called to inform me that she was in labor. No problem, right? I’ll get the deadline extended. As my partner (who was scheduled to celebrate his wedding anniversary on a relaxing getaway and instead had to help finalize the brief) can attest, however, contesting election results present some unique considerations and can lead to their own demanding and inflexible deadlines. Continue Reading

Posted in Appellate Practice, Courts of Appeals, Texas Supreme Court

Election 2016: Some New Faces on Texas Appellate Courts

D. Todd Smith

8453568053_8102d2cb23_oAs in recent cycles, Republican incumbents and open-seat candidates for Texas appellate benches generally fared well in the 2016 general election. South Texas was the notable exception.

The election will not change the Texas Supreme Court’s composition—at least not directly—as incumbent Justices Paul Green, Eva Guzman, and Debra Lehrmann all retained their seats. Donald Trump’s victory in the presidential race might indirectly affect the Court, however, as Justice Don Willett remains in the national conversation about who will fill the late Justice Scalia’s spot on the U.S. Supreme Court.

Judge Mike Keasler will return to the Court of Criminal Appeals. His colleague, Judge Larry Meyers (who was elected as a Republican but switched parties) lost to Mary Lou Keel and will be moving on. Republican Scott Walker will fill an open seat on that court.

Republican incumbent Justices Sherry Radack (actually Chief Justice of the First Court of Appeals in Houston), Evelyn Keyes (First Court), Lana Myers (Dallas), David Schenck (Dallas), and Tracy Christopher (Fourteenth in Houston) will each serve another term.

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Posted in Appellate Practice, Oral Argument, Technology

How I’m Using My iPad Pro for Appellate Arguments

D. Todd Smith

I just completed my second Fifth Circuit argument using my big iPad Pro in a more prominent role than ever before. Inspired by Jeff Richardson’s post about how he used an iPad to prepare for and present an appellate argument, I thought I’d share how I’ve integrated the device into my preparation and presentation strategy.


Reviewing and marking up the appellate briefs and record is an essential component of argument preparation. For me, that once involved having hard work copies made from master versions in a physical file that sat on a shelf or in a cabinet somewhere in my office. We’re talking about an awful lot of paper to keep up with and store. Now that Texas appellate courts have joined the Fifth Circuit as all-electronic, it’s easier than ever for me to forego paper and maintain everything in digital form.

I use PDF Expert and Dropbox to sync files between my MacBook Pro and my iPad. Instead of paper work copies, I create an “OA” folder in Dropbox using this structure…
 Screenshot 2016-11-04 06.58.25


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Posted in Fifth Circuit, Oral Argument, Texas Supreme Court

A New Orleans State of Mind

D. Todd Smith

27460085441_51b3252313_o-e1477694494873-960x720I’m on something of an oral-argument streak. As of November 9, I will have argued five cases in the Texas Supreme Court or the Fifth Court of Appeals in the span of 18 months.

As I’m preparing for another trip to New Orleans, I thought about this post listing my colleagues’ favorite places to stay and eat. The Lafayette Hotel is reasonably priced for what you get, and its proximity to the Court can’t be beat. (I took the above shot during my last stay there, and the John Minor Wisdom Building is as close as those shown.) Hotel Monteleone has been great too.

I don’t think I’ve ever had a bad meal in New Orleans. Herbsaint is an easy walk across the street from the Lafayette and is quite good. If I have time on my way out of town, I like to eat lunch at Commander’s Palace in the Garden District. Awesome.

I’m always struck by the relative formality of New Orleans, where many nice restaurants require a jacket. Here in Austin, you will see shorts and flip-flops in some of the nicest places, and nobody thinks twice about it.

One downside to living in Austin is not being able to enjoy the city as if I were a visitor. I suppose I could justify staying in a hotel the night before a SCOTX argument, but I’ve never done it. I tend to sleep better in my own bed anyway.

Posted in Announcements, Blogs & Blogging

LXBN Feature Highlights Texas Appellate Law Blog

D. Todd Smith

I’m pleased to pass along the news that this blog was featured in the most recent installment of LexBlog Leaders, an LXBN series focusing on successful LexBlog Network blogs.

Screenshot 2016-10-01 10.22.45Among other topics, the interview covers my take on blogging success and how this site has evolved since its launch almost ten years ago. Anyone interested is welcome to check the story out: LexBlog Leaders: D. Todd Smith Has Always Seen the Value of His Blog.

I tend to be an early adopter, and having started the first blog on Texas appellate practice is a point of pride for me. I’m even prouder that the blog is still going and that the voices here are no longer just my own. To everyone who reads and supports what we do, I say thank you. I look forward to continuing this venture and seeing where it goes from here.