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Texas Appellate Law Blog

Civil Appellate Practice Tips, Resources, and News

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

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

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:

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

Posted in Appellate Practice, Briefs, Motions

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.

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

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

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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

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

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

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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

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

Posted in Fifth Circuit, Oral Argument, Technology

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

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This proposal is open to written comment by sending an email to to changes@ca5.uscourts.gov 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.

Appellate Practice and Procedure Lesson 3: Handling an Appeal—The Decision to Appeal and Preliminary Matters

Posted in Appellate Practice and Procedure Course

1747917718_7d941b5441_zThis post features the video and slidedeck for the third lecture in my Appellate Practice and Procedure course, which I introduced here. The presentation appears after the jump.

The first half of this session focuses on the initial questions the client and lawyer should ask when considering a potential appeal. The second half focuses on other preliminary issues such as jurisdiction, the notice of appeal, appellate timetables, docketing the appeal, and requesting the record.

At the threshold, clients most often want to know about cost and the probability for success. Though not specifically addressed in the presentation, another question that comes up frequently is how long the process will take. Lawyers should be prepared to discuss these issues when advising a client whether to appeal. Continue Reading

Appellate Practice and Procedure Lesson 2: How Appellate Lawyers Bring Value at the Trial Court Level

Posted in Appellate Practice, Appellate Practice and Procedure Course

9684049363_7f44f4829a_oThis post features the video and slidedeck for the second lecture in my Appellate Practice and Procedure course, which I introduced here. The presentation appears after the jump.

This is one of my favorite topics in the series. Getting involved in a case early creates opportunities for appellate lawyers to influence decisions that can make or break an appeal. This is far preferable to working with a cold record, after the fact, that appellate counsel had no part in developing. The appellate lawyer’s natural entry points include claim and defense analysis at the pleadings stage, expert-witness and discovery strategy, preparing and responding to potentially dispositive motions, drafting and arguing the jury charge, preserving error during trial, formulating the judgment, requesting and proposing findings of fact and conclusions of law, and pre- and post-verdict motions preceding an appeal.

Not every case justifies the expense, but trial lawyers and their clients should consider retaining an appellate lawyer skilled in these areas to sit second or third chair at trial. In this role, appellate counsel can focus on protecting the client’s interests several steps down the line, while trial counsel concentrates on getting the most favorable testimony from witnesses and delivering an effective closing argument.

Questions? Use the comment section below or the hashtag #APandP. Otherwise, we will resume on March 2 with Lesson 3: Handling an Appeal—The Decision to Appeal and Preliminary Matters.

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Mardi Gras or Not: When in New Orleans for Oral Argument, Where Should I Stay and Eat?

Posted in Appellate Practice, Fifth Circuit, Oral Argument

106114431_6da2a0e8fd_zWith Fat Tuesday having passed, the timing seems right to consider lodging and restaurant recommendations for those who occasionally venture to New Orleans for Fifth Circuit oral arguments.

When I asked the 607 members of the Texas Appellate Law LinkedIn Group about their preferences, the response was overwhelming. The information was so helpful that I couldn’t resist sharing the top recommendations here. Continue Reading

Appellate Practice and Procedure Lesson 1: Overview and Tools of the Trade

Posted in Appellate Practice and Procedure Course, Technology

This post includes the video and slidedeck for the first lecture in my Appellate Practice and Procedure course, which I introduced on this blog here and here. The presentation appears after the jump.

In this lesson, after introducing myself and going over the course syllabus, I discuss the nature of appellate work as opposed to other types of litigation, the upside of having an appellate practice, the anatomy of the appellate process, and the tools of the trade.

Although I put this lecture together several years ago, my observations about it being a good time to start a solo appellate practice generally hold true today. In 2009, technology had advanced such that one could run an appellate practice with a laptop, high-speed internet, a printer, and a legal research database subscription. Smartphones, tablets, and online practice-management platforms have since emerged as additional tools in the appellate lawyer’s toolbox.

Questions? Use the comment section below. Otherwise, we will resume on February 23 with Lesson 2: How Appellate Lawyers Bring Value at the Trial Court Level.

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Appellate Practice and Procedure Course Syllabus

Posted in Appellate Practice and Procedure Course

As announced here earlier this week, I will be releasing my Appellate Practice and Procedure course content beginning February 16. For those interested, the course syllabus is as follows:

Course Outline

I. Overview

A. Why Practice Appellate Law?

B. Anatomy of the Appellate Process

II. Tools of the Trade

A. Computer and High Speed Internet Connection

B. Research Databases

C. Reference Materials

D. Legal-Writing Ability

III. How Appellate Lawyers Bring Value at the Trial Court Level

A. Strategic Planning and Analysis

B. Error Preservation

C. Jury Charge Preparation

D. Motions/Responses and Trial Briefing

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