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

I have been surprised at the variety of ways in which contingent-fee agreements address what will happen if the case goes up on appeal.  Some don't deal with it at all, other than to say that the trial attorney is not obligated to pursue or defend an appeal should one be taken.  At the other end of the spectrum, agreements that encompass any appeal sometimes kick the lawyer's cut of any recovery up by 5 or 10 percent.

Like most other attorney-client issues, this one is probably best spelled out up front.  Selfishly, I like the "10 percenters" because the trial lawyer is usually willing if not eager to part with the increase to have a specialist handle the appeal, especially if 10 percent is all it takes.  But some don't like a 10 percent kicker because that arrangement leaves the client with less than half the recovery after costs are taken off the top.

Depending on the case, the trial lawyer might assign the differential plus some part of his or her original share, sometimes blended with a flat-fee portion to offset the risk.  Another alternative is to take some portion of the trial lawyer's contingency, as well as some other portion of the gross recovery directly from the client.

There really is no right or wrong way to do it, but in my view, contingent-fee agreements should always spell out what happens in the event of an appeal.

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Kevin O'Keefe of LexBlog recently started a group on LinkedIn to try and connect with more folks in the legal industry who have an interest in blogging.  The group is already up to about 350 members and could eventually grow into the thousands.

Kevin says he's going to focus the group on ways to exchange information about blogging.  If you're on LinkedIn (I am, and you can view my profile here), then click through to Kevin's post and join.  And if you don't know Kevin, you should.  He really knows his stuff.

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UT Law School will be holding its annual Conference on State and Federal Appeals on May 29-30, 2008 at the Four Seasons Hotel here in Austin.  You can find more information about the conference and register online here.

This is a "don't miss" event for lawyers looking to stay up to speed on current trends and emerging issues in Texas and federal appellate practice.  I am particularly interested in the session entitled "Effective Use of Appellate Counsel in Federal District Court," during which we will learn "what’s effective and what’s not when appellate counsel venture into federal trial courts."

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The Texas Supreme Court made up for what had been a slow March by issuing an incredible 20 decisions with this week's orders.  Timely posting links for each opinion—much less any meaningful analysis—would be unwieldy given my current schedule.  PDFs of the opinions are available here.

Update:  Click on this link for Osler McCarthy's summaries.

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Last night, the web version of the San Antonio Express-News ran a commentary by Osler McCarthy, the Texas Supreme Court's Staff Attorney for Public Information, addressing watchdog groups' recent claims regarding alleged ethics violations and docket backlog.  McCarthy gives another view based primarily on official Court statistics, and he makes some interesting points.  Those following these stories should take into account what he says.

3/28/08 Update:  Sophisitic Miltonian Serbonian Blog and The Supreme Court of Texas Blog  provide further analysis.

3/30/08 Update:  Texas Watch spokesman Alex Winslow responds to McCarthy here.

This debate seems to have hit a dead end.  I'll follow up again only if there's something new.

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The blogosphere has been a little slow catching on to yesterday's SCOTUS decision in Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989).  Aside from my own post, here are the blog entries I have found discussing the case:

• Adjunct Law Prof Blog, which opines that parties to a collective bargaining agreement can still alter the standard of judicial review because they are governed by 29 U.S.C. § 1985 (Section 301) and common law, rather than the FAA.
  
• Blawgletter, which surmises that the decision might re-focus attention on the arbitration process itself and mentions that parties who remain concerned about an arbitrator "going off the reservation" might consider adopting an arbitration appeal procedure.
  
• Federal Civil Practice Bulletin, which summarizes the majority opinion.
  
• Northwest Business Litigation Blog, which does the same.
  
• SCOTUSwiki, which has a lot of background information on the case.
  
• Supreme Court of Texas Blog, which focuses on how the case may affect Bison Building Materials, Ltd. v. Aldridge (No. 06-1084), a case currently pending in the Texas Supreme Court—and rightly points out that Hall Street may be flying under the radar because it was issued the same day as "the much sexier Medellin v. Texas decision."
  
• WorkPlace Prof Blog, which found the outcome surprising and somewhat troubling because it might restrict contracting parties' ability to bargain for procedural protections not specifically addressed in the FAA.

I will supplement this list as new discussions come to my attention.

3/27/08 update with additional links:

• ADR Prof Blog
• ADR Prof Blog (follow-up)
• Disputing
• LawMemo Arbitration Blog
• National Arbitration Forum Blog

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In Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989) (previously discussed here), the U.S. Supreme Court has held that a contract purporting to allow judicial review of an arbitration award for evidentiary and legal errors cannot be enforced under the Federal Arbitration Act.

Although this decision shutters the notion that parties can contract for expanded judicial review under the FAA, it does not preclude enforcement of such agreements under state law.  The key is whether the underlying agreement "involves commerce"—something the Hall Street parties did not litigate—and thereby triggers the federal statute.  Thus, in an effort to preserve existing agreements for enhanced review, parties will contend that state arbitration law applies.  Going forward, contracting parties will more likely turn to "arbitration appellate panels," building a level of review into the arbitration process before reaching any potential judicial remedies.

In vehemently defending the narrow statutory bases for vacating arbitration awards, Hall Street muddies the water with respect to whether judicially created vacatur grounds such as "manifest disregard of the law" and "violation of public policy" remain valid.  Those grounds were not squarely at issue—manifest disregard is mentioned in the majority opinion, but public policy is not—yet the Court describes the FAA bases for vacatur and modification as "exclusive."  Federal and state courts applying the FAA will face these issues in the near future.

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The Texas Board of Legal Specialization is considering changes to the certification criteria for Civil Appellate Law, among other areas.  A redline of the potential revisions is available here.

I have not studied the proposal word-for-word, but it appears to broaden the Board's discretion in determining who is authorized to sit for the exam.  In addition, the proposal would expand the types of dispositions formerly characterized as "final judgments" on appeal and would reduce the required number of oral arguments by one-third.

Although the comment period is technically closed, a certification analyst recommended sending any suggestions to TBLS Executive Director Gary McNeil at gmcneil@texasbar.com.  TBLS apparently intends to seek final Texas Supreme Court approval sometime this fall.

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The Appellate Sections of the State Bar of Texas and the Austin Bar Association are sponsoring a program entitled “An Evening with the Texas Supreme Court” on Thursday, March 27, 2008, from 4:30 to 7:00 p.m. at the InterContinental Stephen F. Austin Hotel here in Austin.  CLE credit (1.5 hours, .33 ethics) has been requested.

The event will feature a panel discussion with Chief Justice Jefferson and Justices Brister, Johnson, and Willet.  A reception with the justices will follow.

Register by mailing a $25 check payable to “State Bar of Texas Appellate Section” to Anne Johnson at Haynes and Boone, 901 Main Street, Suite 3100, Dallas, Texas 75202.  You may also reserve a space by calling Anne at (214) 340-7974 or by e-mailing her at anne.johnson@haynesboone.com, with $30 payable at the door.

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What does one have to do to get a case set for oral argument before the Third Court of Appeals?  It's a rhetorical question I've heard others ask recently.

Early last year, I discussed the perception that oral argument in Texas appellate practice is dying a slow death.  I asked how appellate practitioners are supposed to hone oral advocacy skills if the chances that argument will be heard in any given case are less than 20 percent.  I also asked how, given these general statistics, less experienced appellate lawyers are supposed to acquire the number of arguments necessary to qualify for the board certification exam.

The State Bar Appellate Section offers one potential answer to both questions:  participate in its appellate pro bono program, which now covers both the Third Court and the Texas Supreme Court.  The Third Court apparently will give priority to cases in the program for oral argument, so signing up for the program (using this form) and taking these cases could help increase one's oral argument experience.  The Section is to be commended for this effort.

In a follow-up post, I wrote about how some Third Court justices have stated that they generally favor oral argument and have suggested including a separate statement in your brief explaining why oral argument should be heard.  (Coincidentally, the supreme court is considering a change to TRAP 38 that would acknowledge the validity of such statements.)  Since then, other Third Court justices have said that a formal motion requesting oral argument may be considered favorably, even if oral argument was initially denied.

Now for the call-out.

I'm handling a case in the Third Court that involves a seven-figure judgment rendered after a rare Travis County District Court jury trial.  The case turns on three main issues, all of which the Texas Supreme Court has written on in the past few years.  Both parties requested oral argument in their briefs.

After the briefing was complete, I happened to review the Court's online docket and found a reference mistakenly indicating that my opponent had not requested oral argument.  Although the parties received no formal notice, a subsequent online docket entry indicated that oral argument had been denied.

I filed a motion highlighting the mistake and setting out the reasons why the case should be heard on oral submission.  The other side opposed the motion on the basis that it would delay a decision, even though the parties had not been notified of a submission date and the case has not appeared on the Third Court's submission calendar.  Per this postcard, the Court denied the motion without comment.

How many seven-figure judgments on jury verdicts with good issues will the Court be asked to review in 2008?  Has the Court already decided how the case will come out, thus rendering any argument futile?  If not, why did the Court deny argument in this (or any other) case?

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The Texas Supreme Court released no new opinions with this week's short set of orders.  March has been quiet thus far, but I suspect we'll see a flurry of new decisions before month's end.

3/17/08 Update:  The Supreme Court of Texas Blog points out that Good Friday is this week and no regular orders are scheduled that day.  Unless the Court issues a special set, it may not release any new opinions until March 28.

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I am pleased to announce that this blog has moved over to the LexBlog platform.  The new URL is http://texasappellatelawblog.com.

All previous posts have been incorporated into the new format, and the old URL will remain active for a few weeks to ensure a smooth transition.  After that, visitors to the old address will be redirected here.

This is an exciting development as I look to take this blog and my practice to the next level.  If you have comments about the new format or any suggestions, please let me know.

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The Texas Supreme Court kicked off Spring Break here in Austin by issuing no opinions with today’s orders.  Of interest, the Court set two cases for oral argument in Lubbock under the Texas Constitution’s “traveling roadshow” provision (art. V, § 3(a)).

The timing is coincidental, but this blog will be on hiatus for the next several days as I finalize some exciting changes and improvements.  Details to follow soon.

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If something looks too good to be true, it probably is.  So it goes with the notion that the Fourth Court of Appeals would begin regularly webcasting oral arguments through the St. Mary's Law School web site.

According to the Tex Parte Blog, the Fourth Court will hear two cases tomorrow on the St. Mary's campus.  The St. Mary's courtroom is set up for live webcasting, but the court's regular home at the Cadena-Reeves Justice Center is not.  No wonder we didn't see any official announcement.

Webcasting an intermediate court of appeals argument is still a good thing.  It just needs to be done on a wider and more regular basis.

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In Finney v. Vanderbilt Mortgage & Finance, Inc. (No. 03-07-00329-CV), the Third Court of Appeals reminds us that a request for findings of fact and conclusions of law does not extend the deadline for filing a notice of appeal from a summary judgment.  Other than for accelerated appeals, such requests push the deadline from 30 days to 90 days after the judgment is signed if "findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court."  TRAP 26.1(a)(4).

Because findings and conclusions are neither required nor properly considered on appeal in the summary judgment context, and because the appellant in Finney did not file his notice of appeal within 30 days after the judgment was signed, the notice was not timely.  The court therefore dismissed the appeal for want of jurisdiction.

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