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

For my 100th post, I am pleased to feature a topic near and dear to all appellate lawyers' hearts:  why trial counsel and their clients should hire us early in the litigation process.  Leane Capps Medford of RoseWalker, LLP lays out several compelling reasons in Preventive Medicine for Your Case:  See Your Appellate Lawyer Long Before Trial, from the ABA Council of Appellate Lawyers' e-zine, Appellate Issues.

I wholeheartedly agree with Leane's suggestions that trial lawyers utilize appellate counsel to:

• analyze claims and damages;
• identify legal trends that could impact the case;
• help focus discovery efforts;
• create better trial motions and briefs; and
• attend critical hearings to build credibility and assist the court.

Difficult as it may be, trial lawyers and their clients should break out of the mindset that appellate lawyers should only be consulted in the biggest cases or after an adverse decision has come down.  As Leane explains, appellate counsel retained early in the process can add a great deal of value along the way.

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Ray Ward at the (new) legal writer has this great post listing his favorite online writing resources.  He includes references for dictionaries, quotations, briefwriting, and citations, among other things.  I haven't looked at all of Ray's suggestions yet, but I expect to add many of them to the Useful Links section (in the right-hand column) so that anyone who is interested will have easy access.

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Yesterday, Texas Lawyer released the results of its annual salary and billing survey.  The accompanying article quotes a couple of corporate general counsels about how BigLaw's ever-increasing rates may affect their choice of outside lawyers.  Comparing annual rate increases to "death and taxes, you know it's coming every year," one says that smaller boutique firms may get projects his company used to give to larger firms.  Another, whose legal department handles most matters in-house,says he looks for lawyers with specific expertise when hiring outside counsel and tries "to hire the lawyer, not so much the law firm."

Many have predicted that increasing big firm rates will drive more business to specialized solos and small firms.  Common observations are that clients don't want to pay for the extra overhead associated with large firms or to train young lawyers to whom their work might get "pushed down."  Solos and small firms are well positioned to offer the same expertise at significantly lower hourly rates or under alternative fee arrangements that big firms have been slow to implement.

Hiring large firms is considered a "safe" choice, but it is also an expensive one.  Here's hoping that more corporate counsel open their minds to hiring the lawyer rather than the law firm. They might just get better service at a better price.

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Over at Law.com,appellate practitioner and How Appealing blogger Howard J. Bashman has this piece about the stare decisis effect of federal circuit court decisions predicting state law when intermediate state appellate courts have since reached a different result.  As cited in a law review article surveying the circuits' various approaches to this issue, the Fifth Circuit laid out its rule in FDIC v. Abraham, 137 F.3d 264 (5th Cir. 1998):

We are, of course, a strict stare decisis court.  One aspect of that doctrine to which we adhere without exception is the rule that one panel of this court cannot disregard, much less overrule, the decision of a prior panel.  Adherence to this rule is no less immutable when the matter determined by the prior panel is the interpretation of state law:  Such interpretations are no less binding on subsequent panels than are prior interpretations of federal law. . . .

We conclude then, that when our [Erie Railroad Co. v. Tompkins] analysis of controlling state law is conducted for the purpose of deciding whether to follow or depart from prior precedent of this circuit, and neither a clearly contrary subsequent holding of the highest court of the state nor a subsequent statutory authority, squarely on point, is available for guidance, we should not disregard our own prior precedent on the basis of subsequent intermediate state appellate court precedent unless such precedent comprises unanimous or near-unanimous holdings from several—preferably a majority—of the intermediate appellate courts of the state in question.

Absent definitive statutory or Texas Supreme Court authority, lawyers otherwise constrained by a Fifth Circuit prediction of Texas law should examine whether intervening court of appeals decisions hold differently on the issue at hand.  If so, Abraham may create an argument that a Fifth Circuit panel is not bound by the prior Erie prediction and need not wait for an en banc ruling to reach a contrary result.

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In another chapter of the most recent school-finance case, Neeley v. West Orange-Cove Consolidated Independent School District, the Third Court of Appeals has rejected the State's challenge to the district court's $4 million attorneys' fee award.  The court of appeals held that the State waived its argument that certain constitutional provisions precluded the districts from recovering such fees by failing to raise the argument in its direct appeal to the Texas Supreme Court.  Applying the Uniform Declaratory Judgments Act, the court further held that that the award was "equitable and just."

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In Smith International, Inc. v. The Egle Group LLC, the Fifth Circuit has reversed in part the district court's summary judgment on the plaintiff's claims for breach of contract, negligence, and indemnity.  Although it agreed with the district court that the contract and negligence claims were time-barred under Texas law, the circuit court concluded that neither res judicata nor limitations precluded the indemnity claim.  The opinion contains an interesting discussion of "liability" versus "damages" indemnity agreements and explains the different accrual rules for each.

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The Texas Supreme Court issued a single per curiam decision with today's orders.

In Schaub v. Sanchez, the Court held that a patient's mere lack of consent to a medical procedure did not support a cause of action for lack of informed consent under the former Medical Liability Act (now codified at Chapter 74 of the Civil Practice and Remedies Code) because that statute applies only if a doctor negligently fails to disclose the procedure's risks or hazards to the patient.  Here, the plaintiff did not complain that she was unaware of the risks or hazards; indeed, she had undergone the same procedure twice before.  The plaintiff might have had a battery or negligence claim, but those claims were dismissed by agreed order and were not before the Court.  Accordingly, the Court rendered judgment that the plaintiff take nothing.

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With last week's orders, the Texas Supreme Court decided five cases, four of which involved per curiam opinions.

In Goodyear Tire & Rubber Co. v. Mayes, the Court concluded that the plaintiff failed to raise fact issues sufficient to preclude summary judgment.  Reversing a divided court of appeals for failure to apply the proper standard of review, the Court rendered judgment that the plaintiff take nothing.

In In re Allied Chemical Corporation, a divided Court conditionally granted mandamus relief to defendants in a mass-tort case set for trial even though the plaintiffs had never identified medical experts who could connect their diseases to the defendants' products.  The Court determined that the trial setting was premature and that mandamus was appropriate (1) to avoid a "monumental waste of judicial resources," (2) because the trial setting effectively denied discovery going to the heart of the defendants' case, and (3) because the setting severely compromised the defendants' ability to present any case at all at trial.  Justice Hecht concurred, and Chief Justice Jefferson (joined by Justices O'Neill, Wainwright, and Johnson) and Justice Wainwright each issued dissenting opinions.

In Kallam v. Boyd, theCourt withdrew its previous order granting the defendants' petitions and denied the petitions as improvidently granted because the plaintiff died shortly before oral argument.  Under the circumstances, the Court decided not to address the constitutional issue on which the court of appeals' decision turned:  whether the Texas Constitution's Open Courts provision precluded application of the statute of limitations to bar claims before the plaintiff reasonably could have discovered them.

In Brinson Ford, Inc. v. Alger, the Court held that the plaintiff, who fell from a pedestrian ramp at an auto dealership, presented no evidence of a premises condition posing an unreasonable risk of harm.  The Court reversed and rendered judgment for the dealership.

In In re Allstate County Mutual Insurance Co., the Court conditionally granted mandamus relief to an insurer and agent bombarded with a total of 213 discovery requests (89 requests for production, 59 interrogatories, and 65 requests for admission) in a third party car-wreck case.

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The Volokh Conspiracy has a couple of interesting posts on this subject.  (Hat tip to How Appealing.)  Unsurprisingly, participation in law review and a judicial clerkship are emphasized as the first steps to breaking into appellate practice.  Other suggestions include going to work for a large firm with the goal of lateraling to an appellate boutique after gaining real-world litigation experience.

This is an extremely competitive practice area, especially with the downturn in litigation that has occurred over the past several years.  Law students and young lawyers interested in appellate work should realize that it won't just come to them, even if they work for a big firm.  Once they commit to appellate practice as a goal, they need to differentiate themselves (this is where law review and judicial clerkships can make the difference) and gain the trust and confidence of those in a position to send appellate matters their way.

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In Levy v. OfficeMax, Inc., the Third Court of Appeals has reversed the dismissal of class claims that OfficeMax and Best Buy must assign tax refund rights to customers who mailed in product rebates.  On remand, the trial court will consider whether such assignments can be compelled and whether a class should be certified.

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I am recovering from working on a major case that has taken nearly all my time for the past two months, but will be getting back into the swing soon.  In the meantime, here is a PDF of Osler McCarthy's summaries of the opinions issued with last week's Texas Supreme Court orders.  If the past few weeks are any indication, we can expect a number of new decisions between now and when "summer recess" begins (typically around July 4).

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The Texas Supreme Court issued several opinions with this week's orders.  For details, check out Osler McCarthy's excellent summaries, which I am posting in PDF here.

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