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

As discussed previously, Third Court of Appeals Justice Diane Henson spoke to the Austin Bar Association's Solo and Small Firm Section last week.  With her permission, I am posting a copy of her handout here.

Justice Henson gave a useful overview of how the Third Court conducts its business and offered some helpful briefing and oral-argument tips.  One thing I learned was that the Court doesn't have access to Westlaw, so advocates should consider providing a Lexis cite for opinions not published in the South Western Reporter.

The following point also stuck with me:  Don't ask the Court to reschedule an oral argument unless you have a very good reason.  Aside from the fact that oral argument is not granted in most cases, the argument calendar fills up pretty far in advance because the Court is required to give the parties 21 days notice of the setting.  A valuable time slot may go unfilled because of a late cancellation.

As a Westlaw subscriber, I haven't figured out an easy solution to the Lexis issue, though I would just include a copy of the opinion in my appendix if it were important enough.  On rescheduling, one of my clients actually benefitted from a late cancellation earlier this year when the clerk called and asked if I could argue a case the following week.  Fortunately, the case was not overly complicated, so we were able to pull it off.

If you have a case going to the Third Court of Appeals or questions about Texas appellate practice generally, please don't hesitate to contact me to discuss whether I can help.

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The Texas Supreme Court released seven opinions with this week's regular orders.  They are:

• Unauthorized Practice of Law Committee v. Nationwide Mutual Insurance Company (No. 05-0130) (per curiam), denying the petition for review based on its recent "captive counsel" decision, but leaving open the question of whether an insurer engages in the unauthorized practice of law by employing staff attorneys to represent its affiliates’ insureds.
   
• Davis v. Fisk Electric Co. (No. 06-0162), reversing judgment and remanding for new trial after concluding that at least two peremptory strikes were based on race.
   
• Reliance Steel & Aluminum Co v. Sevcik (No. 06-0422), concluding that evidence defendant had $1.9 billion in annual revenues was inadmissible and that the error was reversible.
   
• Martinez-Partido v. Methodist Specialty & Transplant Hospital (No. 06-0611) (per curiam), holdilng that a party seeking affirmance in the court of appeals need not request the lesser relief of remand to be entitled to that result.
   
• Adams v. YMCA of San Antonio (No. 07-0221) (per curiam), holding that legally sufficient evidence supported the jury’s finding of future mental anguish.
   
• State of Texas v. Dawmar Partners, Ltd. (No. 07-0548) (per curiam), concluding in condemnation case that landowners were not entitled to compensation for diminished value because they did not suffer a material and substantial impairment of access.

The Court also tweaked its previous ruling in s in David J. Sacks, P.C. v. Hayden (No. 07-0472) (per curiam), grantng rehearing in that attorney's-fee dispute and remanding to the court of appeals instead of rendering judgment for the lawyer.

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Justice Diane Henson will be speaking to the Austin Bar Association's Solo and Small Firm Section at noon tomorrow, September 25, in the ABA seminar room.  The topic will be "Practice Pointers From the Third Court of Appeals."  Attendees will receive 30 minutes of CLE credit.

The event is free for Section members, and others may attend for a nominal charge of $10.  Validated parking is available in the 816 Congress garage.  If you're interested in reserving a catered lunch, please contact Bill Biggs at wbiggs@sbcglobal.net.  Brown baggers are welcome.

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I've been tagged by Brooks Schuelke to participate in an "internet meme" started by the anonymous Editor of Blawg Review a couple of weeks back.  The concept works sort of like a chain letter:  the respondent in this meme is supposed to identify and link to five non-law blogs of interest and then tag five other law bloggers to do the same.

If you start with Brooks's post, you can trace the thread backwards and sideways and get some idea of the power behind the meme concept.  (The phrase "going viral" comes to mind.)  Because I'm a "rules guy" by nature—which goes a long way toward explaining why I'm an appellate lawyer—I have complied with Ed's request that each post be named "5 Blogs & 5 Blawgers."

So, here are my choices for non-law blogs:

• Daily Writing Tips:  a good resource for simple, yet effective tips to improve your writing.
   
• June Walker:  tax and financial advisor to the self-employed since 1979.
   
• Lifehacker:  featuring tips, shortcuts, and downloads intended to help you get things done smarter and more efficiently.
   
• LinkedIn Blog:  an education in social networking with a business focus.
   
• Twitter Handbook:  for those of us trying to get our minds around the concept of "tweeting" without laughing out loud. 

The following law bloggers are tagged to continue the meme:  fellow appellate types Howard Bashman and Greg May; fellow Texans Barry Barnett and Wayne Schiess; and Inhouserantor (who a number of us wish would post more often).

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The headline to this post sounds like a question one might see on the appellate board-certification exam, which is coming up in a few weeks.  So, in that spirit, let's do some multiple choice.  Without peeking, try and select the correct answer from this list:

a.  105 days after the new trial order is signed;

b.  75 days after the new trial order is signed;

c.  30 days after the new trial order is signed;

d.  There is no deadline.

e.  None of the above.

I SAID NO PEEKING!  The answer appears after the jump.

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As discussed this morning at Don Cruse's Supreme Court of Texas Blog and picked up by How Appealing, Justice Don Willett wrote an interesting op-ed that appeared recently in the online version of the Austin American-Statesman.  (Note to the Statesman's editorial staff:  When you receive a submission from a sitting Texas Supreme Court justice, it's probably a good idea to publish it in the print edition as well.)

In honor of Constitution Day, Justice Willett discussed the U.S. Supreme Court's recent Heller decision (the D.C. gun-ban, Second Amendment case) and the parties' and Court's reliance on a new, fully indexed online library of constitutional source materials created by ConSource.  Justice Willett, who sits on ConSource's national advisory board, describes it as "a nonprofit with this singular goal:  granting direct access to our Founders' words."

In his blog post, Don Cruse mentioned the Debates in the Texas Constitutional Convention of 1875 as something of a state counterpart.  As Don noted, though, "[i]t’s not as lovingly annotated as its federal equivalents, but it does shed at least a little light on some of the more mysterious parts of our constitution."

These are undoubtedly useful resources.  But honestly, I don't often analyze  federal or state constitutional provisions in my practice.  For most folks like me, better documentation and dissemination of state statutory legislative history would be more useful.  When someone creates a nonprofit entity dedicated to that purpose, just tell me where to send a check.

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For the third straight week, the Texas Supreme Court released no opinions with today's regular orders.  This means the Court has technically issued no decisions this fiscal year.  Rest assured, that will change soon.

Aside from its regular business, the Court has responded to Hurricane Ike much like it did with previous disasters—by issuing an order providing for extended filing deadlines because of courthouse closures and other after-effects.  The Court also issued a separate order allowing displaced Louisiana attorneys to work from Texas temporarily.

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Over at his Legal-Writing Blog, Prof. Wayne Schiess offered up what one of his students wrote after expressing the desire to become an appellate lawyer and after working in the appellate-practice group at a law firm:

I learned some valuable lessons about appellate practice, and the difference between enjoying something in school and enjoying it in a law-firm setting.  The appellate group at the firm was very busy.  The partner I worked under was churning out two to three briefs a week. In my final few weeks at that firm, he gave me an opportunity to write a brief completely by myself.  It was an eight-page reply brief regarding a mandamus request to stop the discovery of certain documents.

Over the course of the next two weeks, I pored over the trial record, the appellee's brief, and the privileged documents.  I enjoyed it just as much as I had enjoyed brief writing in school.  But the time pressure was much greater, and the ability to fine tune and perfect my work was much less.  In the end, the experience made me realize something critical: Legal writing, on a high level, can be rewarding and interesting, but it can also be utterly draining.  I realized why appellate lawyers at law firms are stereotypically labeled as the smartest lawyers at the firm.  The fact that they can come to work, day in and day out, and spend hours thinking and writing at such a level makes them nothing less than brilliant, if you ask me.

Prof. Schiess wrapped up the post by saying, "Hats off to all you appellate lawyers, then."

I commented and added the following two cents:

That is indeed valuable insight.  Too often, law students have a pie-in-the-sky view of what appellate practice is really like.  Yes, you're more in control over your daily schedule than trial lawyers usually are.  But the average billable hour as an appellate lawyer is far more challenging mentally.  (And I should know, having done both for most of my career, though I'm heavily tilted toward appellate work now.)  Week after week of brief after brief can wear on you, but we press on because we enjoy the work and the challenge of changing (or holding onto) the result.

Thanks to Prof. Schiess for starting this discussion and to Elana Einhorn for bringing his post to my attention.

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At the recent Advanced Appellate Seminar, Texas Supreme Court watcher and appellate practitioner Pam Baron presented a paper summarizing her analysis of the Court's docket as of September 1, 2008.  With Pam's permission, I am making her paper available here.

The paper answers a number of questions we appellate practitioners get from clients.  Here are some of her observations:

• For the first time in eight years, the Court ended the term with fewer cases than were left at the end of the prior term.
   
• With the number of overall filings down, the statistical chances of getting a petition granted have risen to about 15 percent.  The grant rate nearly doubles in cases in which the Court requests full briefing.
   
• The average time for a decision on a petition for review is 166 days.  Mandamus petitions average 123 days.
   
• In argued cases, the average time from initial filing to issuance of opinion is 28 months, ranging from a low of 11 months to a high of 54 months.

Pam also takes a detailed look at the Court's docket by subject matter.  She further identifies the cases on what she calls the "shadow docket"—those pending for more than 12 months without a decision to grant or deny.

Texas Lawyer mentioned Pam's paper in today's issue.

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The Texas Supreme Court issued no opinions with this week's orders.

All eyes between here and the Gulf Coast are on Hurricane Ike.  You know things are serious when high school and college football games are rescheduled.

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As mentioned here, I experimented with Twitter last week by "live-tweeting" from the Advanced Appellate Seminar here in Austin.  I picked up a few followers as a result of this effort—including one who also tweeted from the CLE—but it otherwise seems as though the experiment went unnoticed.

For anyone who is interested, I'm reproducing the text of my seminar tweets below:

Last presentation of the conference: Topic is legal writing. Nothing like video clips from "My Cousin Vinny" to wrap thing up. 03:14 PM September 05, 2008 from twitterrific

Appellate e-filing system will allow proximity searches of all ct docs, bring transparency to ct business. Notices will be electronic. 02:27 PM September 05, 2008 from twitterrific

Discussion of e-filing in appellate courts: Please, please, please! Software is in development. 02:11 PM September 05, 2008 from twitterrific

Discussion of appellate rule changes: Focusing on changes to docket equalization rules, procedure for getting case transferred back. 01:47 PM September 05, 2008 from twitterrific

My blog just got mentioned for at least the 2nd time at the seminar I'm attending. 1st time was in a PowerPoint. 2nd gave URL. Nice. 01:40 PM September 05, 2008 from twitterrific

3 components: Be an expert, be comprehensible, be credible. Objective approach is more effective. 11:46 AM September 05, 2008 from twitterrific

New presentation re appellate advocacy: Helping the court do its job should be the appellate advocate's primary goal. 11:43 AM September 05, 2008 from twitterrific

When filing mandamus and asking for emergency relief, call clerk and ask about submitting documents electronically in addition to paper. 11:28 AM September 05, 2008 from twitterrific

Mandamus filings & grants haven't increased noticeably, despite predictions after AIU & Prudential. Too early to tell after In re McAllen. 11:24 AM September 05, 2008 from twitterrific

Staff attorney panel: First extensions of briefing deadlines are routinely granted across courts. Accelerated appeals are trickier. 11:21 AM September 05, 2008 from twitterrific

Oral argument: Avoid "with all due respect" and just answer question. Advise client/staff they're on "candid camera" with webcasts. 10:13 AM September 05, 2008 from twitterrific

Panel likes amicus briefs early if they're useful. Best to present "real world" view different from parties' perspective. 10:06 AM September 05, 2008 from twitterrific

Not commenting on merits, but just occurred to me that 3 of 4 TSC justices on panel are up on ethics charges. Weird. 10:02 AM September 05, 2008 from twitterrific

Statutory construction cases, justice turnover in recent years have made Court's job harder, negatively affected output. 09:34 AM September 05, 2008 from twitterrific

TSC Panel: http://twitpic.com/aar1 First question out of the chute, what's up with the backlog? 09:29 AM September 05, 2008 from twitterrific

David Keltner discussing City of Keller v. Wilson. 3 years later, even appellate lawyers don't understand effect on standards of review. 09:04 AM September 05, 2008 from twitterrific

2nd day of appellate seminar has begun. Pam Baron is talking about the TSC docket. With her permission, will post her paper on blog later. 08:43 AM September 05, 2008 from twitterrific

Last topic of the day: Reports on new SBOT Appellate Section website and pro bono efforts. Will blog about the website changes tonight. 04:53 PM September 04, 2008 from twitterrific

In-house counsel: Limited $ explain why amicus briefs aren't filed in more intermediate cases. Must limit to critical issues. 04:28 PM September 04, 2008 from twitterrific

Intermediate appellate courts want to see amicus briefs before oral argument. That's when they're most likely to have impact. 04:19 PM September 04, 2008 from twitterrific

TSC wants amici to target issues affected, historical analysis, not "me too" brief. Can make difference whether case is granted. 04:11 PM September 04, 2008 from twitterrific

Amicus briefing panel based on questionnaire to TX judges. J. O'Neill says amici are more accurately described as "friend of a party." 04:08 PM September 04, 2008 from twitterrific

Reply briefs can be very helpful, drill down to core issues. Justices sometimes read them first. 03:04 PM September 04, 2008 from twitterrific

Oral argument by capable advocate often useful. Otherwise, "it's just 20 minutes off your life." 03:02 PM September 04, 2008 from twitterrific

Many lawyers rehash briefs in argument. More likely granted in statutory construction cases, big records, hot issues not answered by TSC. 02:54 PM September 04, 2008 from twitterrific

Oral arguments: Trend is more being heard, particularly in 13th. Don't hesitate to ask for reconsideration if denied. 02:51 PM September 04, 2008 from twitterrific

Court of Appeals Panel: Brevity, accuracy in briefs appreciated. Put best argument forward. Limit number of issues raised. 02:44 PM September 04, 2008 from twitterrific

Tailoring litigation process through bench trials, master in chancery seen as possible solutions. 02:31 PM September 04, 2008 from twitterrific

Hearing what's left of attacks on arbitration awards after Hall St. v. Mattell. Is FAA exclusive, or are other vacatur grounds still valid? 02:28 PM September 04, 2008 from twitterrific

Scott Rothenberg's ethics presentation: Discussing new ABA opinion on outsourcing. Not sure it's consistent with TX rules. 12:45 PM September 04, 2008 from twitterrific

In-house: Treat billing as client relations opportunity. Communicate, review entries before bills go out. Panel ends. Good presentation. 12:22 PM September 04, 2008 from twitterrific

Clients want to know, what are chances, how long will it take, and how much will it cost? Rule of thumb: add 50% to estimate. 12:18 PM September 04, 2008 from twitterrific

Big-firm lawyer: Wisdom is, best biz developers often have biggest write-offs. 12:12 PM September 04, 2008 from twitterrific

In-house: Appellate lawyers can budget easier than trial lawyers. Universe is defined. Can adjust for unforeseen events. 12:10 PM September 04, 2008 from twitterrific

Discussion of fees & retainers. Solo works on contingency, gets ownership in cause of action. Reverse-contingent fees trickier to collect. 12:08 PM September 04, 2008 from twitterrific

In-house counsel emphasizes that go-to appellate counsel should deliver value, regardless of rate. Instill confidence, but be honest. 11:49 AM September 04, 2008 from twitterrific

Panelists agree major issue is setting client expectations. What is a "win"? Show client you care. 11:44 AM September 04, 2008 from twitterrific

Panel presentation on client relations. Panelists include in-house, solo, small firm, and big firm lawyers. Good cross-section. 11:41 AM September 04, 2008 from twitterrific

Just ran into fellow LexBlogger Jeff Rambin of the Tyler Appeals blog. Good to compare notes face to face. 10:49 AM September 04, 2008 from twitterrific

Not surprisingly, Tex Sup Ct's newly released decisions have been hot topic among first 3 speakers. 10:21 AM September 04, 2008 from twitterrific

Advanced Appellate Seminar under way. House is packed. Still strange not to see Justice Baker on the front row. 09:10 AM September 04, 2008 from twitterrific

If you've read this entire post, I'd like your feedback.  What do you think?  Should I do this again?

Update:  Here is a list of lawyer-Twitterers, courtesy of Susan Cartier Liebel at Build a Solo Practice, LLC.  I'll definitely be following some of these folks.

Further Update:  Adrian Lurssen of JDScoop will be updating the list here.

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The Texas Supreme Court issued no opinions with today's short set of regular Friday orders.  It's nice to get a breather after last week's flood of new decisions.

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The State Bar Appellate Section officially rolled out its re-designed website today.  The new, user-friendly interface is full of useful information and contains links to a number of handy resources.  I suggest that anyone reading this blog visit the new site and bookmark it for future reference.

Among the site's new features is a permanent link to the current issue of the Section's quarterly publication, The Appellate Advocate (of which I am editor).  We have also included a new author/title/subject index and a special page linking to all of the judicial interviews published to date.  Finally, we have arranged for Hein Online to archive all past issues in searchable form, which will be made available to Section members at no charge.  The archives are in the process of being populated and will be available within the next few weeks.

Our outgoing Section Chair, Doug Alexander, deserves credit for spearheading this project,  and Steve Hayes should be commended for the fine job he did working with the designer to get things just right.  And on behalf of The Appellate Advocate, I would like to thank Rich Phillips for his help in getting the ball rolling with Hein.  All in all, this was a great team effort.

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Armed with my new iPhone 3G, I'm going to conduct a little social media experiment and "live Twitter" from the Advanced Civil Appellate Practice Course tomorrow and Friday.  If you're interested, follow the discussion at http://twitter.com/dtoddsmith.

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From his evacuation site in Montgomery, Alabama, my blogging colleague Tad Bartlett of The Bartlett Blawg reported that the Fifth Circuit will be closed following the passage of Hurricane Gustav.  As he wrote this morning:

The U.S. Court of Appeals for the Fifth Circuit is officially closed September 2 & 3 (oral arguments for this week have been moved to Texas courthouses), and all filings due between September 1 and 5 have been automatically extended to September 8, 2008. At 10 a.m. on September 2, a team will inspect the New Orleans courthouse and clerk’s offices and make further determinations regarding closure and reopening. Expect further updates to be posted at the Court’s website.

Since then, Tex Parte has reported that the Fifth Circuit was spared from any damage.  The Court will remain closed this week, but will open for business on Monday, September 8.

Of those who did not evacuate, Ray Ward of Minor Wisdom and the (new) legal writer has posted by Blackberry that all is well.  And Ernie the Attorney has taken citizen journalism to a whole new level with his frequent Twitter updates.

9/3/08 Update:  Jeff Rambin at Tyler Appeals took Gustav as an opportunity to discuss the Texas Supreme Court's Task Force to Ensure Judicial Readiness in Times of Emergency.  Read Jeff's comments here.

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This is the second installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "What kinds of orders are subject to appeal in Texas?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

Generally, a trial court's rulings in civil cases are not subject to appeal until a final judgment has been rendered.  To be final, a judgment must dispose of all parties and issues.  No particular form or “magic words” are required.

The tests for finality depend on whether the judgment at issue followed a conventional trial on the merits.  If so, finality is presumed unless the judgment is intrinsically interlocutory or the court ordered separate trials on certain issues.  When a judgment is presumed final and the presumption is not rebutted, claims that are not mentioned explicitly in the judgment may be disposed of by implication.

A judgment rendered without a conventional trial on the merits is final only if it actually disposes of all claims and parties or states with unmistakable clarity that it is a final judgment as to all claims and parties.  The second part of this test is met by including language such as “this judgment finally disposes of all claims and all parties and is appealable.”  This analysis may require reviewing the record to determine what claims were asserted against what parties and which claims the court intended to address.

The general finality rule has several statutory exceptions.  The most common examples of appealable interlocutory orders are ones that:

• appoint a receiver or trustee, or overrule a motion to vacate an order appointing a receiver or trustee;
   
• certify or refuse to certify a class;
   
• grant or refuse a temporary injunction, or grant or overrule a motion to dissolve a temporary injunction;
   
• deny a motion for summary judgment based on an assertion of immunity by an individual officer or employee of the state or a political subdivision;
   
• deny a motion for summary judgment based on a claim against or defense by a member of the media or a person whose communication is published, arising under constitutional free speech or free press provisions or the state libel statute;
   
• grant or deny a special appearance, except in a suit under the Family Code;
   
• grant or deny a plea to the jurisdiction by a governmental unit;
   
• grant or deny a motion to dismiss a health care liability claim based on expert-report requirements;
   
• deny a motion to compel arbitration or grant a stay of arbitration; or
   
• affect a party in a multi-plaintiff venue contest.

Texas also has a little-used “permissive” appeal statute authorizing review of an otherwise-unappealable interlocutory order involving a controlling question of law.

Interlocutory appeals are accelerated by rule and must be perfected within twenty days after the trial court signs the order being appealed.  In most cases, an interlocutory appeal will stay commencement of a trial pending resolution of the appeal.  All proceedings—not just the trial setting—are stayed in interlocutory appeals involving class actions, government immunity motions for summary judgment, and government pleas to the jurisdiction.

Recent statutory amendments have significantly expanded the Texas Supreme Court’s jurisdiction to review interlocutory orders, which historically have been considered final in the courts of appeals.

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Following up on this post, the Texas Supreme Court has quietly issued orders formally amending the Texas Rules of Appellate Procedure and making technical corrections to the amendments.  

The amendments went into effect today.  A redline comparison of the proposed changes and the final version is available here.

The most significant change from the proposed amendments announced in March appears to be a newly restructured Rule 28, which governs accelerated appeals.  Rather than trump statutory perfection deadlines, the revision clarifies (through the comment to the 2008 changes) that any statutory deadlines will control.

Special thanks to Lisa Hobbs for bringing these orders to my attention.

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