Archives: Procedure

Subscribe to Procedure RSS Feed

Certificates of Merit: Don’t Let Your Lawsuit End Before It Begins

Maitreya Tomlinson
Clients have called upon me with increasing frequency regarding certificate of merit issues. While somewhat innocuous, I have found that real danger lurks behind the certificate of merit requirements contained in Chapter 150 of the Texas Civil Practice and Remedies Code. Noncompliance, for example, may lead to dismissal with prejudice. Because of the potential harm … Continue Reading

Texas MDLs and Appellate Lawyers

Last week, I spoke at TexasBarCLE’s Advanced Civil Appellate Practice Course about transfer proceedings before the Texas Judicial Panel on Multidistrict Litigation. For anyone interested, my presentation slides appear at the end of this post. MDLs may not seem all that relevant to appellate practice at first blush, but it is important for appellate lawyers … Continue Reading

SCOTX: Postjudgment Interest—All Accrual Dates Are Not Created Equal

Maitreya Tomlinson
Statutes that appear clear are oft fraught with unanswered questions. This is unsurprising, as drafters cannot anticipate every scenario when crafting legislation. Falling into that vein, last week, the Texas Supreme Court decided a previously unaddressed question regarding the accrual date of postjudgment interest under the Texas Finance Code. In Long v. Castle Texas Production … Continue Reading

How to Handle Cross-Appeals

D. Todd Smith
Yesterday afternoon, I spoke at the Advanced Civil Appellate Practice Course, an annual program sponsored by TexasBarCLE and the State Bar Appellate Section. My topic was “How to Handle Cross-Appeals.” I promised the attendees that I would make my paper and slides available over the web. Clicking the links should open each one in a … Continue Reading

Principled Appellate Decisions

D. Todd Smith
Yesterday 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

D. Todd Smith
The 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

Use Care When Drafting Trial-Court Orders

D. Todd Smith
A lawyer heading into a trial-court hearing should draft a favorable order and have it on hand in case the judge is inclined to rule then and there. In addition to being efficient and good for client relations, getting that kind of instant gratification feels great. That said, use care when drafting an order you want … Continue Reading

Some Appellate Judicial Wisdom in 140-Character Bites

D. Todd Smith
Over 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?

D. Todd Smith
Appellate 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

D. Todd Smith
As 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

D. Todd Smith
A 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

SCOTX Adopts Word-Count Rule

D. Todd Smith
The 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

Uniform Docketing Statement Released

D. Todd Smith
I 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

D. Todd Smith
I 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

Hedges and Hawthorne to Speak on New TAMES System

D. Todd Smith
On 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

Must Attorney Fees Be Superseded on Appeal?

D. Todd Smith
A 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

The Adaptable (Appellate) Lawyer

D. Todd Smith
I recently attended the 2011 State Bar of Texas Annual Meeting in San Antonio.  As mentioned here before, the Bar asked me to come back as a presenter this year.  It was quite an honor. My subject was e-filing in state and federal appellate courts.  In conjunction with my talk, I published a short article in … Continue Reading

Appellate Rules & Deadlines? There’s an App for That

D. Todd Smith
Dallas family-law specialist Jimmy Verner has provided a new incentive for Blackberry users to switch to an iPhone with VernerLegal‘s release of two applications directly relevant to Texas appellate lawyers:  Texas Litigation Deadlines (home screen pictured) and Texas Appellate Procedure Rules.  Both are available for purchase via iTunes. The rules application reproduces the text of … Continue Reading

Trial Courts Must Explain Reason for Granting New Trial

D. Todd Smith
Historically, Texas trial judges have been afforded very broad discretion in granting new trials.  Readers who took a Texas civil procedure course in law school may recall being taught that an order granting a new trial may be reviewed under only two circumstances:  (1) when the order is void (such as when the trial court … Continue Reading

Interlocutory Appeal After Final Judgment?

D. Todd Smith
Although appeal is generally not available absent a final judgment, Texas law allows parties to bring accelerated interlocutory appeals in several circumstances.  In most cases, the trial is stayed by statute until the interlocutory appeal is resolved,  But sometimes the trial court renders a final judgment before then. What does one do in that situation?  File an amended notice of appeal? No, … Continue Reading

Extensions of Time in the Third Court

D. Todd Smith
Dealing with the ever-present problem of conflicting deadlines, I recently filed a motion for extension of time to file a reply brief in the Third Court of Appeals here in Austin.  My opponent kindly agreed to a 30-day extension, which I determined would be more than sufficient to get the brief done and manage my other cases. Several days … Continue Reading

What Is the Deadline for “Ungranting” a New Trial?

D. Todd Smith
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 … Continue Reading

Revised TRAP Amendments Effective Today

D. Todd Smith
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 … Continue Reading
LexBlog