Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : Smith Law Group, P.C. : Appeals, Sanctions, Summary Judgment : Austin, Texas

Ringing in the new year takes us to another milestone—the fifth anniversary of this blog's launch.  Year-end has been a natural time to re-evaluate, re-assess, and plan for the next twelve months.

Last January 1, I announced that Brandy Wingate had joined my firm, @Smith Law Group, and we are enjoying what she has added to our practice.  The firm is continuing to grow and change, so be on the lookout for some new announcements soon.  One recent addition is a new Twitter feed, @AppellaTex, geared specifically to this blog and its focus on Texas civil appellate practice.

May you all have a very happy and blessed 2012!

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This afternoon at 2:00, the Texas Supreme Court will hold a public hearing to explore the feasibility of a statewide uniform system for electronic court filings.  The hearing will take place in the Supreme Court Courtroom and will be webcast live here.

The Court is considering whether Texas ought to implement a system modeled to some degree after Public Access to Court Electronic Records (PACER), the federal courts’ electronic document portal.  In conjunction with the Case Management-Electronic Case Filing (CM-ECF) feature, PACER allows litigants to file documents electronically at no charge, 24 hours a day.  Parties and the public may access the docket online and may view and download listed documents for a fee.

Followers of this blog know that I have advocated e-filing for years and have watched closely as our state e-filing processes have developed.  Texas has made great strides in this area, but the current system is far from perfect.  PACER/CM-ECF has its flaws too, but it has been implemented successfully in federal trial and appellate courts and provides a reference point to something other than the state courts' filing-fee driven model.

A system that is not fee-based at the filing stage would level the playing field for everyone with access to a computer and an internet connection, and a uniform approach to e-filing and online document access would be inherently valuable.  We should applaud the Supreme Court for considering the need for and benefits of a uniform system and for taking the initiative to gather more information about the options going forward.

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A split is developing among the intermediate Texas appellate courts on an issue important to civil trial lawyers and their clients:  whether attorney fees must be included in the amount of security a judgment debtor must post to prevent execution on the judgment pending appeal.

Under former Texas Rule of Appellate Procedure 24.2(a)(1), an appellant seeking to supersede a money judgment had to post security in “at least the amount of the judgment, interest for the estimated duration of the appeal, and costs.”  House Bill 4, the 2003 tort-reform package, altered the amount of security required to supersede a money judgment by substituting “the amount of compensatory damages awarded in the judgment” for “the amount of the judgment.”  The Texas Supreme Court amended Rule 24.2 accordingly.

Under the old rule, “the amount of the judgment” included not only actual or compensatory damages, but also any punitive or additional damages authorized by law.  Most everyone agreed that HB4 removed these sorts of “noncompensatory” damages from what must be secured, making it easier for defendants to suspend money judgments on appeal.  But questions arose about whether a judgment debtor needs to supersede attorney fees and other matters making up “the amount of the judgment,” yet arguably outside HB4’s “compensatory damages” standard.  The fee issue is finally making its way up to the appellate courts.

Two decisions illustrate the emerging split.  In Shook v. Walden, 304 S.W.3d 910 (Tex. App.—Austin 2010, order), the Third Court of Appeals relied on certain definitions that HB4 added to a different part of the CPRC to conclude that “compensatory damages” did not include attorney fees.  In Fairways Offshore Exploration, Inc. v. Patterson Services, Inc., ___ S.W.3d ___, 2011 WL 2925910 (Tex. App.—Houston [1st Dist.] July 21, 2011, order), the First Court of Appeals declined to follow Shook, holding instead that attorney fees are “compensatory damages awarded in the judgment” that must be secured to suspend enforcement of a judgment pending appeal.

This topic is too complex to treat in depth here.  For one thing, Shook has some nuances that might be read as imposing something less than an absolute rule excluding attorney fees from what must be superseded.  I intend to write more about this issue and may put together a CLE presentation on it.  In the meantime, practitioners on both sides of the docket need to be aware of the Shook-Fairways split and consider it in formulating postjudgment strategy.

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Below are the slides from my talk on standards of review at the 25th Annual Advanced Civil Appellate Practice Course.  This is an important but incredibly dense topic, and I only had 30 minutes to present it.  I therefore focused on two things:  (1) the abuse-of-discretion standard, which defies precise definition; and (2) legal sufficiency of the evidence after City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).

The slides provide some flavor, but my basic point on City of Keller was that appellate lawyers and courts are still trying to sort out what it means six years later.  I wasn't alone in that view.  The case was mentioned repeatedly during the seminar and was even described as the most important Texas Supreme Court decision from the past decade.

For fun, I'm also including @TexasBarCLE's tweets during my talk.  It's true that, in a hotel ballroom packed with appellate lawyers, only one raised his hand.

Thanks to Brandy Wingate for letting me build on her work product in putting this presentation together.

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Here is the second video from the "ethics intervention" presentation at the Advanced Appellate Seminar recently put on by the State Bar Appellate Section and TexasBarCLE,  Houston appellate lawyer David Holman once again demonstrates some things counsel should not do, this time in the context of preparing and filing a motion for rehearing in the court of appeals.  Russell Hollenbeck plays Holman's client.

The quotes from real-life motions for rehearing are priceless.  They bring back memories of the famous motion for rehearing in which a lawyer labeled the Texas Supreme Court one of the "Four Horsemen of the Apocalypse" and called the justices "nine nutty professors."  The lesson?  Writing a "catharsis motion" might make you feel better, but filing one is usually a mistake.

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I recently promised a little humor, so here you go.

In this video, produced for the Advanced Appellate Seminar put on last week by the State Bar Appellate Section and TexasBarCLE, Houston appellate lawyer David Holman demonstrates a number of things counsel should not do during oral argument.  The video was part of an "ethics intervention" in which Holman's colleagues Russell Hollenbeck and Daryl Moore expressed concern about Holman's "ethical lapses."  Richard Hogan appears as Holman's opposing counsel in the video, which also features real-life Justices Martha Hill Jamison, Terry Jennings, and Sharon McCally.

Having this kind of material in a statewide CLE program shows why practicing appellate law in Texas is so special.

Within the next few days, I'll post a similar video addressing motions for rehearing.

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As I wrote about here, the State Bar Appellate Section sponsored a Twitter brief contest in conjunction with the recent Advanced Civil Appellate Practice Course in Austin.  The winners were announced during the Section's annual meeting.

The official PowerPoint containing the winning entries and several honorable mentions is embedded below for everyone's enjoyment.

I intend to put up a couple more follow-up posts about the conference over the next few days. At least one of them will further demonstrate that appellate lawyers can have fun, too.

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Texas appellate e-filing continues to evolve at a rapid pace.  Effective September 12, 2011, attorneys filing documents in the Texas Supreme Court must do so electronically.  Pro se parties may e-file, or they may submit paper documents.

View the Court's latest e-filing order here.  Don Cruse has broken down the new order over at the Supreme Court of Texas Blog.

Aside from SCOTX, e-filing is available in the following state appellate courts:  Austin, Dallas, Eastland (new as of August 8), Houston (1st District), and Houston (14th District).  The Texarkana court may be next in line, as its website states that e-filing will be available there soon.

For background on this development, see the following posts:

• When Will Appellate Courts Catch Up on E-Filing? (1/3/07)
• Appellate Court E-Filing Becoming a Reality (2/15/10)
• More on Appellate E-Filing (4/9/10)
• At Last, E-Filing Is Coming to Texas Appellate Courts (3/3/11)
• Texas Appellate E-Filing Goes Live (3/28/11)
• The Adaptable (Appellate) Lawyer (6/28/11)

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The State Bar Appellate Section and Texas Bar CLE are co-sponsoring the 25th Annual Advanced Civil Appellate Practice Course, which will take place September 8-9, 2011 in Austin.  Related events are the popular Civil Appellate Practice 101 course (formerly known as Appellate Boot Camp) on September 7 and the Section's annual meeting on September 8, to be followed by a cocktail reception.  A registration brochure is available here.

This has been one of my favorite CLEs since I started attending in the 1990s.  I'm even more biased this year because, in addition to serving on the planning committee, I will be speaking on a topic important to any appellate lawyer:  standards of review.

And to show that the folks putting on this program don't take themselves too seriously, the Section is sponsoring a Twitter brief contest, the details of which are available through this link.  Results will be announced at the seminar and via the Section's Twitter feed, @TexAppOrg.

8/17/11 Update:  @TexasBarCLE is promoting the course on Twitter and has created an event page on Facebook.  Follow the hashtags #TBCLEappellate and #140brief for up-to-date information about the seminar and the Twitter brief contest.

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