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.)
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 of service. Visit http://texasappellatelawblog.com, scroll down the sidebar to "Useful Links," and click on "Texas Rules of Appellate Procedure." Presto! No Westlaw or Lexis password required.
For the benefit of those with matters before the Fifth Circuit, I have included a link to that court's web site and a version of the FRAPs that sets out the court's local rules and internal operating procedures. Another useful resource is available that should be consulted early and often: the Practitioner’s Guide to the U.S. Court of Appeals for the Fifth Circuit.
Thanks to the (new) legal writer.
Believe it or not, I'm a sucker for lawyer TV shows, in part because they're so unrealistic they make me laugh. I'd pretty much given up on ABC's Boston Legal this season; for various reasons, I thought the show had jumped the shark. But I couldn't help noticing Tuesday's episode entitled "The Court Supreme," in which James Spader's character, Alan Shore, argues an appeal to the U.S. Supreme Court on behalf of a mentally challenged man facing the death penalty for raping a child.
If you have ever watched the show and have seen one of Alan's politically tinged, closing-argument rants, you can imagine what happened. (Pssssst. Hey Alan. One of the first rules of appellate practice is to save the impassioned jury argument for a jury. To that, I would add that it's generally a bad idea to insult the Justices from the lectern.) A 10-minute video clip is available on YouTube. It's worth watching not only as a reminder of what not to do at an appellate argument, but also for ABC's amazing casting of look-alikes for the High Nine.
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.
Reason No. 1: GCs and other in-house lawyers are busy people. Most don't perceive themselves as having time for networking, especially just to meet potential counsel. And when they are in a networking situation with lots of lawyers, they tend to get swamped like rock stars, so they avoid those situations.
For most companies, an appeal is an infrequent occurrence, so general networking isn't a very effective way to find appellate counsel. GCs are more likely to seek a referral from someone they already know and trust.
From the appellate practitioner's perspective, basic networking isn't a particularly effective way of generating appellate work. The better approach is to cement a good reputation with the trial bar and establish relationships with trial lawyers who represent clients that value what a specialist brings to the table. Companies who hire litigation boutiques over large firms are better prospects than BigLaw clients.
Reason No. 2: Even if not all matters GCs send to big firms are large matters, many require the kind of quick response that necessitates throwing a lot of bodies at it, sometimes for PR or business strategy reasons, rather than the demands of the case or deal itself. Do you remember the Pennzoil vs. Texaco tortuous interference with contract case, with the record-breaking verdict in the 1980's? That whole case would not have happened if Pennzoil had been able to get the formal merger documents completed and signed by Getty before Texaco swooped in. I'm sure lots of people were in hot water over that one, but they would have lost their jobs if they had been using a smaller law firm on the deal.
Absent unusual circumstances, appeals don't run on an "emergency" basis requiring the kind of ramping up inherent in this example. Indeed, one of the challenges in appellate practice is explaining to clients how slowly the wheels of justice turn, with appeals being perhaps the best (or worst) example. When the process begins, the parties are somewhat at the mercy of the clerk and the court reporter, who must prepare the record before the appeal can proceed. Later, control over timing shifts to the appellate court, which generally metes out justice on its own schedule. Once an appeal is taken, the only stage at which the parties have any real control over timing is during the briefing phase, which often requires extensions to manage conflicting deadlines.
Reason No. 3: Fortune 500 companies often need many kinds of expertise in one transaction or one case, and the lawyers need to coordinate well with each other. It makes sense to do "one stop shopping" with lawyers that already know your business and your history.
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 research and writing ability, knowledge of appellate procedure, and familiarity with the court hearing the case. Because appeals are limited to the trial record, knowledge of the client's business and history are not as important as the ability to guide the client through the appellate process with the goal for that specific case in mind.
Reason No. 4: Multi-national companies are putting pressure on their law firms by insisting on multi-national law firms. And how many Fortune 500 companies are not multi-national in today's global economy?
Appeals are inherently local. The appellate lawyer's ability and reputation should carry greater weight than whether the lawyer is affiliated with a multi-national firm. Appellate judges appreciate advocates whose skills in whittling a complex case down to a few significant issues will help guide them to a decision. They generally don't care whether the lawyer is a solo or affiliated with the biggest firm around. The court's familiarity with and trust in the lawyer is a significant factor to consider when hiring appellate counsel.
Reason No. 5: Perhaps more important than any of the above factors, however, is the CYA factor. If a GC chooses a small to mid-size firm and they don't get a good result, the GC will get blamed for having bad judgment in the selection process. If the GC chooses a large firm and they get a bad result, the GC can say "Look, I chose one of the best names in the business. I did all I could."
Of the five rationales, this is the most difficult to debunk. Hiring a large firm is still considered the safe choice, especially in "bet the company" cases. But not every matter involves that kind of risk. Today's climate requires balancing the CYA factor against the bottom line and other advantages that hiring solo or small firm appellate lawyers may bring.
The Texas Supreme Court recently announced changes to several Texas Rules of Appellate Procedure and the adoption of Texas Rule of Judicial Administration 15 . The rules highlighted below will have the broadest effect in civil cases. My comments appear in italics.
The Court is accepting public comments on the proposed changes through June 30, 2008. The amendments, with any changes, will take effect September 1.
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 that encompass any appeal sometimes kick the lawyer's cut of any recovery up by 5 or 10 percent.
Like most other attorney-client issues, this one is probably best spelled out up front. Selfishly, I like the "10 percenters" because the trial lawyer is usually willing if not eager to part with the increase to have a specialist handle the appeal, especially if 10 percent is all it takes. But some don't like a 10 percent kicker because that arrangement leaves the client with less than half the recovery after costs are taken off the top.
Depending on the case, the trial lawyer might assign the differential plus some part of his or her original share, sometimes blended with a flat-fee portion to offset the risk. Another alternative is to take some portion of the trial lawyer's contingency, as well as some other portion of the gross recovery directly from the client.
There really is no right or wrong way to do it, but in my view, contingent-fee agreements should always spell out what happens in the event of an appeal.
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 expand the types of dispositions formerly characterized as "final judgments" on appeal and would reduce the required number of oral arguments by one-third.
Although the comment period is technically closed, a certification analyst recommended sending any suggestions to TBLS Executive Director Gary McNeil at gmcneil@texasbar.com. TBLS apparently intends to seek final Texas Supreme Court approval sometime this fall.
Of all the Texas Supreme Court decisions issued last week, Fairfield Insurance Co. v. Stephens Martin Paving, LP (04-0728) is arguably the most significant. In that case, the Court answered "no"—sort of—to the Fifth Circuit's certified question, "Does Texas public policy prohibit a liability insurance provider from indemnifying an award for punitive damages imposed on its insured because of gross negligence?"
More accurately, the Court reframed the question narrowly and answered it this way: "Pursuant to article V, section 3-c of the Texas Constitution and rule 58.1 of the Texas Rules of Appellate Procedure, we answer that Texas public policy does not prohibit coverage under the type of workers' compensation and employer's liability insurance policy at issue in this case."
That answer begs the question, "How about other types of insurance policies?" More on that in a minute.
Citing three out-of-state cases, the Court first described a two-step analysis for determining whether exemplary damages are insurable. The Court decides (1) whether the policy's plain language covers the exemplary damages sought in the underlying suit against the insured; and (2) if so, whether Texas public policy allows or prohibits coverage under the circumstances, considering any express statutory provisions regarding the insurability of exemplary damages.
The Court skipped the first part of its newly announced analytical standard and proceeded to the second step. After reviewing the relevant statutes, the Court concluded that "[t]he Legislature's expressed intent is that Texas public policy does not prohibit insurance coverage for claims of gross negligence in this context."
That's it. Certified question answered. Opinion over at page 10, right?
Wrong. This is where it gets interesting—so much so as to spark concurring opinions from Justice Hecht and Justice Johnson.
Recognizing "the import of this issue," the Court went on to discuss the "considerations relevant to determining whether Texas public policy prohibits insurance coverage of exemplary damages in other contexts in the absence of a clear legislative policy decision." What follows over the next 17 pages is an impressively researched explication of how every other state has treated the issue, as well as a discussion of key cases outlining both sides of the debate and the critical policy concerns: freedom of contract and whether, based on the specific circumstances, the purpose of imposing exemplary damages is served.
Folks who were hoping for ultimate resolution of whether punitive damages are insurable in Texas are undoubtedly disappointed. Although the Court said more than was needed to answer the Fifth Circuit's certified question, it stopped well short of adopting a bright-line rule. Indeed, just about everything other than worker's compensation coverage remains open for further debate under the framework announced in this case.
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As part of my year-end spending spree (which my accountant recommended to maximize business deductions—but that's another story), I purchased the 18th Edition of The Bluebook: A Uniform System of Citation. Now, the good folks at Harvard Law Review have announced that they are making an online version available on a subscription basis. Figures.
Hat tip to The California Blog of Appeal.
As a follow up to this post on the status of e-filing in the Texas appellate courts, the Third Court of Appeals is now accepting electronic courtesy copies. The court is also asking (but not requiring) the party responsible for requesting or filing the record and briefs to submit e-copies of such documents on a CD or DVD in searchable PDF format. For specific guidelines, see the "Electronic Filing" link on the court's web site.
I haven't surveyed the otherintermediate appellate courts, but if they aren't doing thisalready, they certainly should follow the Third Court's lead.
In this post from last summer, I mentioned reverse contingent fees as a potential means of compensating appellate counsel. Spurred by a question I asked in response to one of his recent posts, Blawgletter (a/k/a Susman Godfrey's Barry Barnett) expounded on how his firm approaches reverse contingent fees in business litigation matters. The methodology would depend on the case, its procedural posture, and the client's financial well being/creditworthiness, but the basic idea is to assign a dollar value to the client's exposure and base the fee on the "savings" obtained by the result. With reports of $1,000 hourly rates and in-house counsel under increasing pressure to rein in outside lawyer fees, we may see more of this approach in the future, especially from solos and small firms who have the flexibility to implement it.
Today's post at the Illinois Trial Practice Weblog contains a useful tip that's worth a mention here: Never read your argument when appearing before an appellate court. Not only is it bad form, but it also hinders your ability to respond to questions or address the points your opponent makes. The post lays out an approach to preparing for argument that should help avoid any need to read from a script.
Within the past couple of weeks, I have been contacted by two different lawyers about their clients' respective appeals, both of which appear to be on a collision course with the Texas Supreme Court. Sounds promising, right? Not so fast.
Rather than calling to discuss hiring me to handle their matters, both lawyers wanted me to recommend someone "politically connected" (i.e., someone with a firm that is a big financial contributor to the individual justices' electoral campaigns) to take over the proceedings.
I don't blame these folks for calling. They are merely doing what they think is in their clients' best interest. But what does this say about lawyers' confidence—not to mention the public's—in our elected judiciary? It's more important to hire someone who has given large sums to political campaigns than someone qualified to do the job (and, in my case, as a sole practitioner with much lower overhead than the "politically connected" firms, do it at a considerably more favorable rate).
Chief Justice Jefferson has tried to pick up the mantle of judicial selection reform and carry on the fight started by his immediate predecessors. The legislature keeps saying no. Don't give up, Chief. Don't give up.
In this commentary, Law.com's Howard J. Bashman discusses the pitfalls of having multiple advocates present oral argument for the same side on appeal. As usual, his observations are dead on. Simpler is better, and one advocate per side is best.
I filed a brief recently in which I made the decision to discard an issue litigated at trial in favor of stronger arguments that, in my judgment, provide better prospects for obtaining appellate relief. Ray Ward, author of the (new) legal writer, compares this exercise to the "kitchen-sink" approach. According to Ray:
When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge. So should we get rid of those weak issues and arguments? Yes, we should, because the risk created by throwing them in is greater than that created by throwing them out. Kenneth Oettle says it better than I can:
Gamblers will continue to gamble even as their stakes dwindle as long as they receive intermittent, unpredictable payoffs. This is how slot machines work. Random payoffs keep the patrons pulling. So it is with weak arguments. We have all won something with a weak argument, so we keep using them. We seem to think that persuading a judge is a matter of pushing buttons until we find the right one. The right argument is, in a sense, a button—if you press it, you persuade. But weak arguments are buttons, too, and unlike the Close Door buttons on elevators, they are connected to something. At a minimum, weak arguments hurt your credibility and cast doubt on your belief in your case; they irritate the court because they lengthen the brief; and they may even insult the court's intelligence.James McElhaney says the same thing in a different way:
Are there risks in [discarding weak arguments]? You bet. Good legal writing is good writing. It's also good lawyering. Good writing and good lawyering both involve taking risks. That runs counter to our law school training, where we were rewarded with good grades for spotting and articulating every conceivable legal issue but were almost never expected to drop the ones that wouldnt fly in the real world. Nobody told us that failing to toss out the arguments that would not fly ultimately runs a bigger risk: creating a mishmash of legal theories that produces lumpy, sodden writing.
The State Bar Appellate Section and Texas Bar CLE are co-sponsoring the 21st Annual Advanced Civil Appellate Practice Course, which will take place September 6-7, 2007 at the Four Seasons in Austin. Related events are the ever-popular Appellate Boot Camp on September 5 and the Section's annual meeting on September 6, which will be followed by a cocktail reception with the judiciary. A registration brochure is available here.
I strongly encourage any lawyer interested in appellate practice to attend this program. The topics are always timely, and the speakers and written materials are always informative. And if you think this group is dull, you've got another thing coming. In connection with the annual meeting, the Appellate Section is holding its first Appellate Song Lyrics Contest, in which contestants are to alter the lyrics of a well known song to give it an "appellate" touch. You can find the contest rules here or in the Summer issue of The Appellate Advocate, which should be hitting mailboxes now. The submission deadline is 5:00 p.m. on Wednesday, August 29.
Ray Ward at the (new) legal writer has posted an article he wrote entitled How to Write an Appellate Brief, in which he breaks down the briefwriting process he uses and takes the reader through it from start to finish. The article is full of practical advice and is a useful read for appellate novices and experts alike. Give it a look.
Earlier this year, Jeffrey Kyle took over for Diane O'Neal as clerk of the Third Court of Appeals here in Austin. With that change came a significant revision to the Court's local practices. Before, an appellee could file its brief anytime up until the case was formally submitted to the Court, which could occur several months (or longer) after the filing of appellant's brief. Now, in conformity with Texas Rule of Appellate Procedure 38.6, appellee's brief is due 30 days after appellant's (20 days if the the appeal is accelerated), and appellant's reply brief is due 20 days later. The Court now requires a motion for extension of time to push these deadlines back.
The online version of the Court's local practice guide (¶57) reflects this change. The printed versions I have seen do not. Moral: Don't rely on memory when advising clients (or yourself) about impending deadlines. As stated here before, always check the rules.
A recent post from Susan Cartier Liebel over at Build a Solo Practice, LLC (entitled The Cockroach of the Legal Profession—The Billable Hour) has spurred me to comment on the continuing viability of the billable hour as it relates to appellate practice.
In my previous life as a big-firm lawyer, the billable hour was ingrained in the very fabric of my being. Every aspect of my days (and sometimes my nights) was measured in 6-minute increments. Since opening my own shop last year, I have come to believe that appellate law is particularly well suited to alternative fee structures and have offered some different fee alternatives to my clients.
Certain features of appellate practice make breaking away from the billable hour possible, depending on the point at which the appellate lawyer becomes involved. In a pure appeal situation—when the trial court has signed an appealable interlocutory order or final judgment—the universe of facts and information is limited by a finite record, sharply restricting the number of curve balls your opponent can legitimately throw your way. In this situation, based on the length of the trial, the volume of the underlying pleadings, and the issues involved, it is possible to estimate the time that will be required to handle the appeal and come up with a flat fee proposal that makes sense for both the lawyer and the client.
In the right situation, a contingent fee may be a possibility. This alternative makes the most sense when a client has obtained a significant judgment and the other side is taking an appeal. However, a reverse contingent fee may be suitable when appealing a large monetary judgment. In that instance, appellate counsel would be paid based on the savings obtained from the original judgment amount.
The billable hour is often criticized for encouraging lawyers to generate revenue by churning files and for providing little or no direct reward for good performance. Yet, we seem to have difficulty parting with the billable hour as the standard for measuring our worth. By offering other options (including hybrid billable-alternative structures), appellate counsel can assure clients that they are adding value to the case while (hopefully) increasing their own bottom line.
I recently received a motion from opposing counsel that relied on (and even block-quoted) an appellate procedural rule that was superseded nearly 10 years ago. The motion sought leave to supplement the appellate record, which is not required under the "new" rules. Instead, any party is authorized to direct the clerk or court reporter to prepare, certify, and file in the appellate court a supplemental record, which automatically become part of the appellate record. See Tex. R. App. P. 34.5(b), 34.6(b).
Every justice, staff attorney, or law clerk at the court of appeals will recognize this error and will know that the lawyer either (1) has not handled an appeal within the last 10 years, or (2) didn't bother to check the rules before filing this motion (or both). You can avoid wasting the Court's time and protect your credibility as an appellate advocate by reviewing the rules applicable to any motion you intend to file.
A lawyer acquaintance called today to ask whether his client (which had suffered a significant money judgment) could mitigate accrual of interest by paying the judgment without rendering its anticipated appeal moot. The Texas Supreme Court laid out the basic procedure for addressing this situation in Marshall v. Housing Authority of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006):
Usually, when a judgment debtor voluntarily satisfies the judgment, the case becomes moot and the debtor waives any right to appeal. The rule is intended to prevent a party who voluntarily satisfies a judgment from later changing his or her mind and appealing. We have held, however, that payment of a judgment will not moot an appeal from that judgment if the judgment debtor timely and clearly expresses an intent to exercise the right of appeal and if appellate relief is not futile (citations omitted).
Study this decision and the cases it cites closely if you are facing a situation in which your client would like to pay a judgment to stop the interest clock from running, yet wants to pursue an appeal from that judgment. If handled properly in the right case, you maybe able to do both without giving up your client's appellate rights.
For my 100th post, I am pleased to feature a topic near and dear to all appellate lawyers' hearts: why trial counsel and their clients should hire us early in the litigation process. Leane Capps Medford of RoseWalker, LLP lays out several compelling reasons in Preventive Medicine for Your Case: See Your Appellate Lawyer Long Before Trial, from the ABA Council of Appellate Lawyers' e-zine, Appellate Issues.
I wholeheartedly agree with Leane's suggestions that trial lawyers utilize appellate counsel to:
Yesterday, Texas Lawyer released the results of its annual salary and billing survey. The accompanying article quotes a couple of corporate general counsels about how BigLaw's ever-increasing rates may affect their choice of outside lawyers. Comparing annual rate increases to "death and taxes, you know it's coming every year," one says that smaller boutique firms may get projects his company used to give to larger firms. Another, whose legal department handles most matters in-house,says he looks for lawyers with specific expertise when hiring outside counsel and tries "to hire the lawyer, not so much the law firm."
Many have predicted that increasing big firm rates will drive more business to specialized solos and small firms. Common observations are that clients don't want to pay for the extra overhead associated with large firms or to train young lawyers to whom their work might get "pushed down." Solos and small firms are well positioned to offer the same expertise at significantly lower hourly rates or under alternative fee arrangements that big firms have been slow to implement.
Hiring large firms is considered a "safe" choice, but it is also an expensive one. Here's hoping that more corporate counsel open their minds to hiring the lawyer rather than the law firm. They might just get better service at a better price.
The Volokh Conspiracy has a couple of interesting posts on this subject. (Hat tip to How Appealing.) Unsurprisingly, participation in law review and a judicial clerkship are emphasized as the first steps to breaking into appellate practice. Other suggestions include going to work for a large firm with the goal of lateraling to an appellate boutique after gaining real-world litigation experience.
This is an extremely competitive practice area, especially with the downturn in litigation that has occurred over the past several years. Law students and young lawyers interested in appellate work should realize that it won't just come to them, even if they work for a big firm. Once they commit to appellate practice as a goal, they need to differentiate themselves (this is where law review and judicial clerkships can make the difference) and gain the trust and confidence of those in a position to send appellate matters their way.
At today's Austin Bar Appellate Section Luncheon, Justices David Puryear, Alan Waldrop, and Diane Henson (the Court's newest member) gave a panel presentation about the goings-on at the Third Court of Appeals. Justices Waldrop and Henson both chimed in about the relative dearth of oral arguments, as previously discussed here. Justice Waldrop indicated that he believes the number of arguments will be rising, but will remain limited becauseof the Court's workload. Justice Henson, a self-proclaimed advocate of oral argument, stated that she intends to do what she can to facilitate it in appropriate cases.
Justice Waldrop offered a helpful tip to those desiring oral argument in the Third Court. Don't simply request it on the cover of your brief. Go beyond what the rules require and include a separate statement inside the front cover explaining why the Court should hear oral argument in your case.
Law.com has a piece today about the importance of getting appellate justices' names right at oral argument. As an extreme illustration, the article cites the argument in Bush v. Gore, in which the attorney arguing for the Florida Secretary of State called four U.S. Supreme Court justices by the wrong name. The author quotes California Supreme Court Clerk Frederick Ohlrich as comparing that gaffe to Joe DiMaggio's 56-game hitting streak—a record that "will likely never be broken."
At Texas Blue, former Eighth Court of Appeals Justice Susan Larsen has posted some interesting comments about what she calls "the slow death of oral argument." Comparing 2001 and 2005 statistics from our state's 14 intermediate appellate courts, Justice Larsen concludes that the number of oral arguments has "dropped precipitously" and that this aspect of the appellate process "is in its death throes."
The statistics Justice Larsen cites are somewhat alarming. For example, the Thirteenth Court of Appeals apparently heard only 11 arguments out of almost 1,000 cases (1.1%) decided in 2005. The highest ratio among the other courts was 16.7%.
Justice Larsen concludes:
You may be asking, why should I care? (Assuming, of course, that this little column has not lulled you into a much-needed power-nap.) My short answer to you is this: judges serve the people. They are not direct representatives as are legislators, but it is their job to decide disputes among real people, not just theorize with briefs and transcripts and law books and computer research. Listening to the representatives of those people, even for fifty minutes, focuses the minds of the judges on the dispute. It gives the entire panel, not just the single judge writing the opinion, a period of time to contemplate that case alone; asking questions, mulling through logical consequences, and doing their job. It promotes discussion amongst the judges, highlights their differing outlooks, enhances critical thinking and results in better law. More than that, oral argument is the only opportunity the public has to observe the decision-making process at work; every other aspect of appellate opinion-ma king is secret.
This slow death of oral argument is regrettable, and reversible. Ask your judges about it; ask candidates for the courts of appeals about it. You are hiring these judges by your vote, and you deserve to know whether they think cases on appeal deserve a thorough discussion in a public courtroom. If judges dont think this, you deserve to know why not.
Setting aside the political implications of Justice Larsen's comments, appellate practitioners should be concerned about the numbers she cites. How do we hone our oral advocacy skills if the best we can hope for is a 1 in 6 chance that argument will be granted? How are less experienced appellate lawyers supposed to acquire the number of arguments necessary to qualify for the board certification exam? These are questions I would like to see answered.
When revamping the Texas appellate court web sites (except for the Dallas Court of Appeals, which has always done its own thing), the Office of Court Administration included a PDF color-coded map showing the boundaries of all fourteen appellate court districts. (A list of counties in each appellate district is available here.) This is a great tool in case someone calls wondering whether appeals from Comal County go to Austin or San Antonio. The answer is just a few clicks away.
Law.com correspondent and appellate guru Howard J. Bashman recently posted "Ten Tips for Excellence in Appellate Advocacy." Though intended for attorneys who don't normally work on appeals, we all would do well to remember Mr. Bashman's pointers.
My favorite? Tip #6, "Get Outside Help":
The insights of an experienced and effective appellate practitioner can be invaluable in deciding what issues should be raised on appeal and how best to argue those issues to obtain the best possible result for the client. No one may know the case or the governing law better than the trial lawyer, but, to win on appeal, you will need to persuade appellate judges who themselves have no preexisting knowledge about your case and often have little, if any, experience with the law governing the outcome in your case. An experienced and effective appellate practitioner can assimilate what the trial lawyers know about the case and present even the most complicated legal and factual matters to appellate judges in the brief and at oral argument in a manner that is both easy to understand and persuasively reasoned. Highly qualified appellate practitioners do not want to take your client from you or control the case on remand to the trial court; rather, they want to work with you to ensure that your client gets the best possible result on appeal.
Amen to that, brother!
Since opening my practice, I have tried to take advantage of technology whenever possible. One of the best developments has been the advent of electronic court filing. Sitting at my desk, I can e-file a document for less than what it would cost to have a hard copy delivered to the Travis County Courthouse a few blocks away. This is a powerful tool for fairly computer-literate practitioners looking to streamline their office procedures and capitalize on new technology as a means of becoming more efficient.
I recently filed an appeal from a Dallas County judgment using my e-filing service, which provides near-immediate electronic confirmation that the clerk has received and accepted the filing. In the old days, I would have sent the initial appeal papers by regular or overnight mail and waited a few days before receiving a file-stamped copy as confirmation. As with other forms of technology, e-filing is helping to break down geographic barriers in the practice of law.
Unfortunately, both federal and state appellate courts have been slow to meet this trend. While they have developed very helpful web sites that make orders and opinions available online and through e-mail notification, parties cannot yet file appellate briefs electronically. The Texas Supreme Court has made strides by posting briefs and oral arguments on its site. More work is needed to make e-filing in appellate courts a reality.
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