Archives: Appellate Practice

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How I Learned to Stop Worrying and Love Formal Bills of Exception

Maitreya Tomlinson
Appellate lawyers are the legal equivalent of a parent that you call to help navigate life’s uncertainties. In action, this means that appellate lawyers receive phone calls regarding obscure areas of law or rarely utilized procedures. The parent comparison suffers in that, unlike answering many parental questions, even well-seasoned appellate lawyers may have to research … Continue Reading

More on iPads and Appellate Arguments

D. Todd Smith
Happy New Year! After seeing my recent post on how I’m using my iPad Pro for appellate arguments, the good folks at the Texas Bar Journal asked if I’d like to publish a version of it in print. That version appears in the just-released January issue, an electronic copy of which is available here. I’ve since … Continue Reading

Demanding a Recount: Appealing Election Challenges

Maitreya Tomlinson
The recent election reminded me of a brush that I had with election-related appeals. A few years ago, I fervently drafted a brief in a primary-contest appeal under a looming deadline. As I neared completion, my pregnant wife called to inform me that she was in labor. No problem, right? I’ll get the deadline extended. … Continue Reading

Election 2016: Some New Faces on Texas Appellate Courts

D. Todd Smith
As in recent cycles, Republican incumbents and open-seat candidates for Texas appellate benches generally fared well in the 2016 general election. South Texas was the notable exception. The election will not change the Texas Supreme Court’s composition—at least not directly—as incumbent Justices Paul Green, Eva Guzman, and Debra Lehrmann all retained their seats. Donald Trump’s … Continue Reading

How I’m Using My iPad Pro for Appellate Arguments

D. Todd Smith
I just completed my second Fifth Circuit argument using my big iPad Pro in a more prominent role than ever before. Inspired by Jeff Richardson’s post about how he used an iPad to prepare for and present an appellate argument, I thought I’d share how I’ve integrated the device into my preparation and presentation strategy. Documents … Continue Reading

Getting the Scoop on Calculating Texas Appellate Deadlines

Maitreya Tomlinson
Appellate lawyers share some job-related realities with journalists, namely running up against deadlines. Although attorneys don’t rush to finish stories before a midnight printing, we do have to meet filing deadlines to seek relief from erroneous trial-court or intermediate-appellate court decisions. Knowing those deadlines (and how they are calculated) is paramount to correctly perfecting appeals. … Continue Reading

Second Bites at the Summary-Judgment Apple (Part II)

Laura P. Haley
In my last post, I addressed the significance of the burden in framing your response to a motion for summary judgment and in your appeal from an adverse summary judgment. In this post, I address getting your evidence in the record and keeping the other side’s out, amending your petition, and filing an appeal from … Continue Reading

Second Bites at the Summary-Judgment Apple (Part I)

Laura P. Haley
All litigators file or respond to dispositive motions, including motions for summary judgment. Dispositive motions are an opportunity for trial attorneys to implement their trial strategy, using the facts in their cases to gain a tactical advantage, whether by eliminating claims or defenses, educating the judge, or poisoning the well. But dispositive motions also require … Continue Reading

A Law Student’s End-of-Summer Clerkship Report

D. Todd Smith
Editor’s Note: The following is a guest post from Brian Wortham, who completed a summer clerkship with our firm this week. Brian is a second-year student at St. Mary’s University School of Law. After surviving my first year of law school, I was set to begin the time-honored tradition of finding a summer clerkship. I … Continue Reading

Soaking Up Some CLE

D. Todd Smith
I spoke today at TexasBarCLE’s Soaking Up Some CLE Program on South Padre Island—one of my favorite places to visit. My topic was “Jury Charges in Commercial Cases.” For anyone interested, my slidedeck appears here. Today was the first time I’ve presented on this particular topic. As always, I learned a lot getting ready for … Continue Reading

Are All JNOV Deadlines Created Equal?

Maitreya Tomlinson
As a young attorney, others advised me that, barring conflicting Texas Supreme Court precedent, Texas intermediate-appellate court holdings constituted the law of Texas. Naturally, with 14 appellate districts covering the great expanse we call Texas, there is ample room for disagreement between those districts. These disagreements can, in turn, set potential traps for litigants. Among … Continue Reading

The Value of Second Opinions

D. Todd Smith
Recently, Patrick Lamb of In Search of Perfect Client Service asked how often in-house counsel seek a second opinion about strategy. (Rarely, it seems.) Drawing on medical statistics, he noted that 50% of Americans do not get second opinions for important medical diagnoses, but among those who do, the second opinion leads to changes in the … Continue Reading

Reporting Attorney Misconduct in Texas, Part I

“Nobody likes a tattletale,” said my mother when I would tell on my sister for various transgressions, like stealing my Barbie dolls. The lesson my mother was teaching was that I should deal with my sister myself. As members of a self-regulated bar association, however, Texas lawyers are required to report serious violations of the … Continue Reading

Practicing Bathtub Law

D. Todd Smith
It may sound strange, but I practice bathtub law. I don’t present myself as an expert in any substantive legal topic. To the contrary, as I wrote here several years ago: Appellate lawyers are perhaps the last of the generalists.  Although appellate practice has gained notoriety as a specialty, it focuses less on the substantive law than on the lawyer’s … Continue Reading

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

D. Todd Smith
This 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 … Continue Reading

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

D. Todd Smith
This 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 … Continue Reading

Appellate Practice and Procedure Course Syllabus

D. Todd Smith
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 … Continue Reading

Registration Open for 28th Annual Advanced Civil Appellate Practice Course

D. Todd Smith
The State Bar Appellate Section and Texas Bar CLE are co-sponsoring the 28th Annual Advanced Civil Appellate Practice Course, which will take place September 4-5, 2014 here in Austin.  Related events are the popular Civil Appellate Practice 101 course on September 3 and the Section’s annual meeting on September 4, to be followed by a reception honoring the judiciary. … Continue Reading

What Do “The Last Days of Big Law” Mean for Boutique Firms?

D. Todd Smith
Noam Scheiber’s recent New Republic article, “The Last Days of Big Law,” has been buzzing over my social media stream for the past week or so. It’s a pretty sobering read, although it hasn’t gone uncriticized. For example, in “Don’t Bury Big Law Just Yet,” The American Lawyer‘s Robin Sparkman wrote that “[r]umors of [the giant law … Continue Reading

What’s New in Appellate Practice

D. Todd Smith
I’m pleased to be featured in the latest installment of Solo Practice University’s "What’s New?" series.  The series consists of free audio guest lectures in which SPU faculty discuss the latest developments in their own practice areas or their specific areas of business expertise. My lecture on what’s new in appellate practice —which is in … Continue Reading

Upcoming Appellate CLE Opportunities

D. Todd Smith
TexasBarCLE and the State Bar Appellate Section are co-sponsoring a new program called "Handling Your First Civil Appeal."  The live session will take place here in Austin on February 18, 2011, and the program will be available via webcast.  Smith Law Group’s own Brandy Wingate will be speaking about motions for rehearing in the courts … Continue Reading

Chief Justice Jones to Speak on State of Third Court

D. Todd Smith
The Austin Bar Association’s Civil Appellate Law Section will meet at noon on January 21, 2010 at Green Pastures.  Chief Justice Woodie Jones (pictured) will speak on "Everything You Always Wanted to Know About the Third Court But Were Afraid to Ask." This should be an interesting and informative talk, as the Chief just completed … Continue Reading

On Reluctance to Engage Appellate Counsel, Part 2

D. Todd Smith
Following up on this post, Greg May at the California Blog of Appeal has completed the third and fourth installments of his series discussing the reasons trial lawyers or their clients choose not to engage appellate counsel.  The entire series is available through this link. Greg’s third installment addresses the trial lawyer’s age-old point, "No one knows the case … Continue Reading

Appellate Court Internal Operating Procedures

D. Todd Smith
Appellate courts are often criticized as being stuck in the "ivory tower," largely because their work is done out of the public eye and is therefore shrouded in mystery.  Among other recent efforts to make the appellate process more transparent, nearly all of the intermediate Texas appellate courts have posted their internal operating procedures on their respective web sites.  … Continue Reading
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