Archives: Appellate Practice

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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

On Reluctance to Engage Appellate Counsel

D. Todd Smith
Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal? That’s the question my blogging cohort Greg May has posed over at the California Blog of Appeal. Greg has begun a series of posts in which he examines the reasons commonly provided when trial lawyers or their clients are faced with an appeal … Continue Reading

Texas Lawyers Could Use This Kind of Resource

D. Todd Smith
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 … Continue Reading

Texas Supreme Court Docket Analysis

D. Todd Smith
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 … Continue Reading

Justice James A. Baker, 1931-2008

D. Todd Smith
While I was out on vacation, I received the sad news that former Texas Supreme Court Justice James Baker had passed away.  Aside from numerous media reports summarizing his many accomplishments, the Court has issued this tribute, which captures the essence of the man.  I was working for former Justice Raul Gonzalez when then-Governor Bush appointed Justice Baker to … Continue Reading

Flat Fees = Good

D. Todd Smith
Anyone want to hire me for a flat fee of $200,000 for a single case?  Didn’t think so.  But then again, I’m not the former Solicitor General of the United States.… Continue Reading

FLDS Presents Appellate Pro Bono Opportunities

D. Todd Smith
The pro bono committees of the Austin Bar Civil Appellate Section and the State Bar Appellate Section are distributing the following message regarding the FLDS matter in El Dorado: Appellate Pro Bono Volunteers  Needed ********* El Dorado Children Lawyers from across the state have volunteered to represent children from the Yearning for Zion Ranch in El Dorado.  … Continue Reading

Should I Run an Ad Like This?

D. Todd Smith
For some Friday afternoon fun, watch this video, courtesy of the Sophistic Miltonian Serbonian Blog: If you don’t know, Tom Goldstein was a small-firm lawyer before he joined Akin Gump. (Yes, this was my first attempt at imbedding video on this blog.)… Continue Reading

The Fifth Circuit’s Practitioner’s Guide

D. Todd Smith
One of my goals in creating this blog was to have it serve as a sort of "home page" for lawyers involved in Texas appeals by providing links to resources those folks are likely to need at some point in the appellate process.  For example, say you’re away from the office and need to double-check what TRAP 9.5 says about certificates … Continue Reading

Should In-House Counsel Stick with Big Firms on Appeal?

D. Todd Smith
In last week’s Fat Friday e-newsletter (available through Technolawyer), lawyer-coach Debra Bruce outlined five reasons why corporate general counsel generally stick to BigLaw, despite rumblings about how high hourly rates and associate salary increases may lead them elsewhere.  Do these reasons apply when a GC is looking for appellate counsel?  For the most part, I don’t think so. … Continue Reading

How Should Contingent-Fee Agreements Address an Appeal?

D. Todd Smith
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 … Continue Reading

Potential Changes to Board Certification Rules

D. Todd Smith
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 … Continue Reading
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