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

An Appellate Lawyer Makes a Trial Team Better

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

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

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

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.


Posted in Appellate Practice, Appellate Practice and Procedure Course, Petition for Review, Rehearing

Appellate Practice and Procedure Lesson 7: Rehearing and Higher Court Review

IMG_0089This post features the video and slides for the seventh lecture in my Appellate Practice and Procedure course, which I introduced here. The presentation appears after the jump.

How do you convince an appellate court to change its mind when it’s already ruled against you? Merely repeating arguments you’ve already made will not do. Motions for rehearing are rarely successful, but if you’re going to bring one, focus on problems with the court’s opinion and any new decisions that may have led the court to decide the case differently. And whatever you do, don’t make it personal.

Higher court review presents its own set of challenges. Are the issues you would take up important to others besides your client? Do opinions from the lower courts conflict on those issues? Has a dissenting opinion given you a framework for structuring a petition likely to catch the justices’ attention? Perhaps most importantly, does the client have the economic fortitude to continue fighting after losing in the court below?

Continue Reading

Posted in Appellate Practice, Appellate Practice and Procedure Course, Oral Argument

Appellate Practice and Procedure Lesson 6: Oral Argument and the Decision

Screenshot 2015-03-21 09.38.44This post features the video and slidedeck for the sixth lecture in my Appellate Practice and Procedure course, which I introduced here. The presentation appears after the jump.

This topic is timely for me as I prepare to stand at this podium and argue before the Texas Supreme Court later in the week. The courtroom—which I first encountered when working as a law clerk to Justice Raul Gonzalez in the mid-1990s—reflects the Court’s rich history.

Prepare, Prepare, Prepare

Oral argument presents an opportunity to zero in on the key issues in your case and to address the justices’ questions directly. Preparation is key. Outline the points you’d like to make, but don’t read from a script or from your brief. Anticipate questions you might get from the panel and consider how you would answer them. Update your research, study any on-point cases released since the briefs were filed, and prepare to address how those cases might apply to yours.

Be Conversational, But Respectful

At the argument, make eye contact with the justices, call them by name, and maintain a conversational tone. When you’re asked a question, answer it as directly as you can and weave the answer into your broader theme. And when the little red light comes on, ask whether you may conclude your point before sitting down.

Here are some other posts about oral argument I’ve published over the years:

Continue Reading

Posted in Appellate Practice, Briefs, Motions

What a Legal-Writing Professor Wishes He’d Known as a New Lawyer

In this month’s Austin Lawyer, UT Law Professor Wayne Schiess published a short piece (also available here) pointing out four things he wishes he’d known about legal writing when he finished law school. I was struck by his first three points.

Law Is a Writing Profession

Professor Schiess posits that lawyers are professional writers rather than orators—something he didn’t fully appreciate as a new law graduate. There’s little room for disagreement on this point today. The number of cases going to trial has generally decreased, and more are being decided on motions to dismiss or motions for summary judgment. While oratory skills are important, a lawyer’s written work product plays an even more vital role in just about every legal dispute.

Becoming a Good Legal Writer Takes Years

Schiess references a theory—stated in Malcolm Gladwell’s Outliers—that one must put in 10,000 hours to become an expert at something. In his view, simply writing more won’t make you an expert. You must study the craft, learn, and then implement what you’ve learned. And even then, assuming you invest 1,000 hours per year, it would still take 10 years to develop true expertise. As Schiess says, that’s a long time.

Who can study the craft of legal writing in the midst of a high-pressure law practice? Anyone who wants to become an expert at it will find a way. You must put in the time and effort to have any hope of achieving the desired result.

Time Pressure Impedes Good Legal Writing

Schiess further wishes he had known about how the realities of law practice cram down the time available to make legal writing good. He uses editing as an example:

Editing is what makes weak writing good and good writing great. But in a busy law practice, careful editing is often sacrificed.

Even the best legal writer needs adequate time to edit before turning out a great work product. When I was a young big-firm lawyer, my mentors advised me to try and set my draft aside and come back to it with a fresh set of eyes, especially when I was working on a complex appellate brief. That’s still good advice today, but the daily grind makes it difficult to implement. Modern word-processing tools help avoid the dreaded spelling error or typo, but they’re not infallible, and they won’t fill gaps in logic or add a missing point.

What do you wish you had known about legal writing as a new lawyer?

Image courtesy of Flickr by Julia Manzerova.

Posted in Appellate Practice, Appellate Practice and Procedure Course, Briefs

Appellate Practice and Procedure Lesson 5: Handling an Appeal—Preparing Briefs (Part 2)


This post features the video and slidedeck for the fifth lecture in my Appellate Practice and Procedure course, which I introduced here. The presentation appears after the jump.

This class picks up where the last one left off. The basic concepts covered in Lesson 4 still apply, but the focus is on strategies and approaches specific to the appellee’s brief and the appellant’s reply brief.

The appellee’s brief is critical because it’s the only chance to address the appellant’s positions unless the court grants oral argument. The idea is to target and refute the complaints raised in the appellant’s opening brief, add any further arguments supporting the result reached in the trial court, and persuade the appellate judges not to disturb that result.

An appellant’s reply brief, if filed, should not simply rehash previous arguments. Instead, it should focus on why the appellee’s arguments are wrong, distinguish the appellee’s authorities, and answer any questions remaining after the initial round of briefing. This focus should be laser-like; get in, make your points thoroughly but succinctly, and get out. Continue Reading

Posted in Appellate Practice, Appellate Practice and Procedure Course, Briefs

Appellate Practice and Procedure Lesson 4: Handling an Appeal—Preparing Briefs (Part 1)


This post features the video and slidedeck for the fourth lecture in my Appellate Practice and Procedure course, which I introduced here. The presentation appears after the jump.

Oral argument is more glamorous, but preparing briefs is the most important task in any appeal. This session overviews the basics of appellate brief-writing and then focuses on how to approach the appellant’s opening brief—the most significant of all because it’s typically the first salvo before the appellate court and seeks to change something the lower court did.

Some of the mechanics of preparing briefs have changed since I recorded this presentation. For example, copying and binding have given way to e-filing in many jurisdictions, and hyperlinking has become more commonplace. But the basic approaches remain the same.

One topic I address is issue selection. The surest way to lose an appellate court’s attention is to file a brief that obscures potentially meritorious arguments with others that stand no reasonable probability for success. An experienced appellate practitioner will cull those points and focus on the ones most likely to gain the court’s attention. Continue Reading

Posted in Fifth Circuit, Oral Argument, Technology

Fifth Circuit Adjusting Rules to Allow (Some) Technology in the Courtroom


The United States Court of Appeals for the Fifth Circuit is considering the following change to 5th. Cir. R. 34.7;

Screenshot 2015-03-05 12.14.21

This proposal is open to written comment by sending an email to to on or before March 16, 2015.

Shortly after the Court announced this change—the first to this rule since 1990—some speculated whether it would pave the way to cameras in the courtroom. Based on what Texas Lawyer‘s John Council reported in this article, that seems improbable. The more likely reason for the update is to bring the Fifth Circuit in line with the reality of lawyers’ now-pervasive reliance on smartphones, tablets, and laptops in their practices, particularly in their roles as advocates.

This conclusion was confirmed when I received a Fifth Circuit oral argument confirmation that included a copy of the Court’s new electronic device policy. That policy—which is not yet available on the Court’s website—generally excludes cameras and recording devices from the John Minor Wisdom United States Court of Appeals Building without the Court’s permission. Laptops, tablets, cell phones, and similar devices with cameras and recording functions are allowed, but must be powered off inside a courtroom during argument unless they are being used by an attorney presenting argument or assisting at counsel table. Social media use inside the courtrooms is prohibited.

Taken together, the revised rule and policy permit advocates to access the tools they need at the appropriate place and time, but guard against the Court’s concerns (identified in Council’s article) about showboating, live-tweeting, and in-court photos. When I go to New Orleans in a few weeks, I’ll be interested to observe how the Court enforces the policy, particularly with respect to smartphones. If I see or experience anything noteworthy, I’ll report back.

For more discussion on this topic, visit Louisiana Civil Appeals and iPhone JD.

Image courtesy of Flickr by Billy Metcalf Photography.