In November 2011, I posted about whether attorney fees must be superseded to stay execution of a judgment pending appeal. Today, in In re Nalle Plastics Family Limited Partnership (No. 11-0903), the Texas Supreme Court resolved a split among the intermediate courts of appeals and answered the question, “No.” Let me set the stage a… Continue Reading
Category Archives: Appellate Practice
Subscribe to Appellate Practice RSS FeedPrincipled Appellate Decisions
Posted in Appellate Practice, Opinions & Judgments, Procedure, Standards of Review, UncategorizedYesterday afternoon, I gave a one-hour presentation to a group of 11 intermediate appellate justices on the topic of “Principled Appellate Decisions.” The presentation was part of the Texas College for Judicial Studies, a program providing educational opportunities to judges who desire to improve their adjudication skills and acquire specific training in their jurisdictional specialization. My… Continue Reading
SCOTX Fixes Word-Count Glitches
Posted in Appellate Practice, Procedure, Supreme Court Orders, Texas Supreme CourtThe Texas Supreme Court has issued an order correcting some of its recent amendments to the Texas Rules of Appellate Procedure. The most notable correction involves the certificate-of-compliance requirement regarding the new word count limits previously discussed here, here, and here. By adding the language underlined below, the Court has made clear that no certificate… Continue Reading
To Cite or Not to Cite: Do Unpublished Opinions Have Precedential Value?
Posted in Appellate Practice, BriefsI recall discovering my first unpublished case as a law student when interning for an intermediate appellate court justice. Strangely, a legend accompanied the opinion disclaiming precedential value, which seemed odd considering that the opinion was written and accessible through my legal database. Around the same time, I encountered my first memorandum opinion with its… Continue Reading
Your Trial Is Over—Now What?
Posted in Announcements, Appellate PracticePer the announcement pasted below, TexasBarCLE has opened registration for a live webinar that Amanda Taylor and I will present next week. This program will be “studio produced” and shot at the Texas Law Center, which will be a new experience for me. If you’re interested but can’t watch live, the presentation will be archived… Continue Reading
Some Appellate Judicial Wisdom in 140-Character Bites
Posted in Appellate Practice, Fifth Circuit, Oral Argument, Procedure, Texas Supreme CourtOver the past week, I have attended two CLE events featuring a panel of appellate judges. At the 29th Annual Litigation Update Institute, Chief Justice Wallace Jefferson, Justice Paul Green, and Justice Debra Lehrmann enlightened attendees on current events at the Texas Supreme Court. Today, Fifth Circuit Judges Pete Benavides and Pricilla Owen and U.S…. Continue Reading
An Unopposed Briefing Extension Request Will Be Granted, Right?
Posted in Appellate Practice, Briefs, ProcedureAppellate work is very time- and labor-intensive. Because it’s difficult to work on more than one matter at a time, appellate lawyers often rely on extensions of briefing deadlines to manage workloads. Texas appellate courts are usually very generous about granting such extensions, particularly when they are unopposed. So I’m sure appellant’s counsel was surprised… Continue Reading
Crafting a TRAP 9.4(i)(3) Certificate of Compliance
Posted in Appellate Practice, Briefs, Procedure, Texas Supreme CourtAs promised yesterday, this post will cover what a certificate of compliance under the new word-count rules might look like, now that every computer-generated document filed in a Texas appellate court on or after December 1, 2012—yes, every one, except for the record—must include such a certificate. The new rules provide the logical starting place…. Continue Reading
Word-Count Rules Going Into Effect December 1
Posted in Appellate Practice, Briefs, Procedure, Technology, Texas Supreme CourtA trial lawyer poses the following question: Do you know for sure whether the new appellate rules are going into effect December 1? Any thoughts on whether an appeal filed on November 29 (but not actually due until December 3) should maintain the old format or use the new rule? Per this Texas Supreme Court… Continue Reading
What Happens in the Event of a Evenly Split SCOTX Vote?
Posted in Appellate Practice, Texas Supreme CourtJustice Wainwright’s recent departure from the Texas Supreme Court has raised an interesting question. As presented to me by a colleague, it goes like this: Without Justice Wainwright, what happens if the Court is split 4-4? Do they just have to fight over it until someone gives in to reach a majority? My initial thought… Continue Reading
Statistics I’d Like to See
Posted in Appellate Practice, Court Administration, Courts of AppealsLike sportswriters and weathercasters, appellate lawyers are constantly asked to make predictions. Just about every potential appellant who who contacts our firm (directly or through their trial counsel) has three basic questions: How much is this going to cost? How long is it going to take? What are my chances of changing the result? Cost… Continue Reading
Looking Back, Looking Forward
Posted in Announcements, Appellate Practiceexcerpt here
SCOTX Adopts Word-Count Rule
Posted in Appellate Practice, Briefs, Petition for Review, Procedure, TechnologyThe Texas Supreme Court has issued an order incorporating word counts into the Texas Rules of Appellate Procedure. The order amends Rules 9, 38, 49, 52, 53, 55, 64, 68, 70, and 71. Some highlights of the amendments include (for computer-generated briefs in civil cases): a minimum 14-point font (12-point for footnotes); a 15,000-word limit… Continue Reading
Smith Law Group Welcomes Maitreya Tomlinson
Posted in Announcements, Appellate PracticeSix years have passed since I left the big firm to establish my own practice. Over that time, we have added a full-time assistant, a part-time administrator, a second lawyer (Brandy Wingate), and a second office in the Rio Grande Valley. Today, I am happy to announce that Maitreya Tomlinson (pictured) has joined Smith Law… Continue Reading
Uniform Docketing Statement Released
Posted in Appellate Practice, ProcedureI was so preoccupied with last week’s State Bar Annual Meeting that I overlooked a significant development relevant to Texas appellate practitioners: the release of a uniform docketing statement for the intermediate courts of appeals. View the official announcement here. A docketing statement is an administrative tool used to collect and provide the court of… Continue Reading
Lone Star Lawyers Converging on Houston for SBOT12
Posted in Appellate Practice, Briefs, Procedure, TechnologyI will soon be departing for Houston to attend the 2012 State Bar of Texas Annual Meeting. This will be my third straight year to attend and my second year as a presenter. On Thursday, as part of the Computer and Technology Section’s “Adaptable Lawyer” track, Don Cruse and I will give a talk entitled… Continue Reading
You Have a Verdict — Now What?
Posted in Announcements, Appellate PracticeOn Monday, May 21, 2012, Austin appellate lawyer Amanda Taylor and I will be giving a talk entitled “You Have a Verdict—Now What?” to the Austin Bar Civil Litigation Section. The program will begin at noon in the ABA seminar room. To RSVP, contact Lois Gardner at (512) 476-1080 or lois@ewbankharris.com. The discussion will focus… Continue Reading
Video of SCOTX CLE Event Now Online
Posted in Appellate Practice, TechnologyThanks to the efforts of Texas Supreme Court Clerk and Austin Bar Civil Appellate Law Section Council member Blake Hawthorne, video of the recent “Evening with the Texas Supreme Court” event is now available for viewing through the Court’s webcast page. I was honored to moderate this discussion as chair of the ABA Section and… Continue Reading
Hedges and Hawthorne to Speak on New TAMES System
Posted in Appellate Practice, Briefs, Procedure, TechnologyOn March 29, 2012, Fourteenth Court of Appeals Chief Justice Adele Hedges and Texas Supreme Court Clerk Blake Hawthorne will speak to the Austin Bar Civil Appellate Law Section on "The Texas Appeals Management and E-filing System: Making Our Appellate Courts More Efficient and Transparent." This talk goes along with an article Blake published in the most… Continue Reading
Austin Appellate Section to Host Chief Justices on January 19
Posted in Announcements, Appellate PracticeThe Austin Bar Association’s Civil Appellate Law Section will kick off the new year with a special program featuring chief justices from several of the fourteen intermediate state courts of appeals. The luncheon meeting, which will take place at noon on January 19, 2012 at Green Pastures, will include the following lineup: Moderator: Chief… Continue Reading
Happy 2012!
Posted in Announcements, Appellate PracticeRinging in the new year takes us to another milestone—the fifth anniversary of this blog’s launch. Year-end has been a natural time to re-evaluate, re-assess, and plan for the next twelve months. Last January 1, I announced that Brandy Wingate had joined my firm, @Smith Law Group, and we are enjoying what she has added… Continue Reading
SCOTX to Hold Hearing on Uniform E-Filing System
Posted in Appellate Practice, TechnologyThis afternoon at 2:00, the Texas Supreme Court will hold a public hearing to explore the feasibility of a statewide uniform system for electronic court filings. The hearing will take place in the Supreme Court Courtroom and will be webcast live here. The Court is considering whether Texas ought to implement a system modeled to… Continue Reading
Must Attorney Fees Be Superseded on Appeal?
Posted in Appellate Practice, Procedure, SupersedeasA split is developing among the intermediate Texas appellate courts on an issue important to civil trial lawyers and their clients: whether attorney fees must be included in the amount of security a judgment debtor must post to prevent execution on the judgment pending appeal. Under former Texas Rule of Appellate Procedure 24.2(a)(1), an appellant… Continue Reading
What’s New in Standards of Review
Posted in Appellate Practice, Standards of ReviewBelow are the slides from my talk on standards of review at the 25th Annual Advanced Civil Appellate Practice Course. This is an important but incredibly dense topic, and I only had 30 minutes to present it. I therefore focused on two things: (1) the abuse-of-discretion standard, which defies precise definition; and (2) legal sufficiency… Continue Reading