Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

The Review of Litigation, a student journal at the University of Texas School of Law, has asked me to help promote its upcoming symposium entitled “The Rise of Appellate Litigators and State Solicitors General.”  Timed to coincide with the tenth anniversary of the Texas Solicitor General's Office, the symposium will explore the creation of state solicitor general and state appellate chief positions, as well as matters significant to private appellate practitioners.

The symposium will take place on January 22-23, 2009, in the Eidman Courtroom at UT Law School.  Admission is free, and CLE credit will be provided for a reasonable fee.  More information, including how to register, is available here.

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This is the fourth installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "If an appeal is not available, do I have any other options for obtaining higher court review?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

If a court order cannot be appealed because it is neither a final judgment nor otherwise made appealable by statute, relief may be available through the appellate courts' authority to issue extraordinary writs.  The most common writ in civil matters is mandamus, which is an original proceeding filed directly in the issuing court.  (The rules are different for habeas corpus, which is beyond the scope of this post.)

The Texas Supreme Court and the courts of appeals have concurrent jurisdiction to issue writs of mandamus in some circumstances.  When that is the case, the petition usually must be presented to the court of appeals first.

To obtain mandamus relief, the requesting party—known as "the relator"—must show that the trial judge committed a clear abuse of discretion for which there is no adequate remedy at law.

The abuse of discretion standard is very deferential to the lower court’s ruling.  A court abuses its discretion by acting arbitrarily, unreasonably, or without reference to guiding principles.  If the facts are disputed and the evidence conflicts, no abuse of discretion has occurred.  But a trial court has no “discretion” in determining what the law is or applying the law to the facts.  A clear failure by the trial court to analyze or apply the law correctly is an abuse of discretion.

Texas courts have struggled to define what constitutes an inadequate remedy at law.  For many years, that requirement was satisfied only when parties were in danger of losing substantial rights.  Merely showing that an appeal would involve more time, expense, or delay than a mandamus was not sufficient.

Recently, the Texas Supreme Court formulated a balancing test and concluded that an appellate remedy is adequate when the benefits obtained by permitting mandamus review are outweighed by the detriments of such review.  Under the new standard, mandamus issues to correct significant rulings in exceptional cases, such as those involving important issues of first impression, issues likely to recur, and issues that elude answer by appeal. The Court adopted the new standard to spare parties and the public the time and expense of unnecessary proceedings, preserve important rights from impairment or loss, and curtail the legislative enlargement of interlocutory appeals.

Commentators have expressed concerns that the new standard will lead to an increase in mandamus filings and an expansion beyond the writ's traditionally narrow scope.  Time will tell whether those concerns are well founded.

Additional information is available here.

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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 better than I do,” and offers some compelling reasons why that isn't necessarily an advantage on appeal.  Greg's commentary made me think of the "forest for the trees" problem that all lawyers face after living with a case too long.  Your mind plays tricks on you, and after a while, you just stop seeing things for what they are.  Better to have a fresh set of eyes on the problem as you take it to another level of review.

The fourth post looks at substantive-law specialization and client-side expertise as possible impediments to hiring appellate counsel and reaches much the same conclusion.  Sometimes, even an expert in a technical area such as intellectual property or in the client's particular industry isn't the right person to take a case up on appeal, at least not alone.  In the end, the best approach may be to work as a team, with lawyers of different skill sets each adding value to the process.

Whatever the backdrop, lawyers are controlling by nature, and it's counter-intuitive to hand a case off when you've got years of blood, sweat, and tears invested in it. That's why relationship-building between trial and appellate lawyers—and, let's not forget, clients—is so important.  The trial lawyer and client need to trust that the appellate lawyer will handle the case appropriately, and the appellate lawyer needs to deliver on that trust.  Repeat that process enough times, and the reluctance to retain appellate counsel diminishes.

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LinkedIn has become a useful networking tool for professionals, and lawyers are no exception.  Six months ago, the number of lawyer profiles on LinkedIn was estimated at just under 120,000.  As more lawyers become educated about the value of social media, there's no telling how high that number will climb.

With that in mind, I have started a Texas Appellate Law Group to facilitate conversation and collaboration among trial and appellate lawyers, in-house counsel, and other professionals working on matters before Texas appellate courts and the Fifth Circuit.

LinkedIn explains the Groups concept this way:

Many professionals advance their careers and business goals by counting on industry and professional groups, alumni organizations, industry conferences and corporate alumni groups to help them make vital new business contacts.  LinkedIn Groups offers extra features to group-based organizations to help their members stay in touch with one another and discover powerful new business contacts within their groups and beyond.

LinkedIn has added several new features to Groups this year, including a discussion capability, a searchable directory of the various groups, and the ability to search for people within groups.

If you're a lawyer or other legal professional with an interest in Texas appellate law, I invite you to join the Texas Appellate Law Group by clicking here.

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Another Texas appellate blog has burst on the scene.  The appellate practice group at Cowles & Thompson, P.C. has launched Reverse & Render, which (according to its welcome post) was created "with the goal of providing useful information to civil appellate practitioners and to the public at large."

Having a respected firm like C&T join the conversation validates once again the concept of blogging about Texas appellate issues.  I have subscribed and look forward to reading more.

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As I ponder yet another case in which the court of appeals has declined to hear oral argument, I'm wondering whether anyone has compiled statistics on how often the trial court's judgment is reversed in that situation.  In other words, based on sheer numbers, should we be telling our appellant-clients that they're probably hosed if oral argument has been denied?

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This is the third installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "What is required to perfect appeal?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

In Texas, an appeal is perfected by filing a notice of appeal.  Timely filing is jurisdictional, but jurisdiction attaches so long as the appellant files an instrument representing a bona fide attempt to appeal.  No bond is required.

The notice of appeal must be in writing and filed with the trial court clerk.  A copy should be sent to the appellate clerk along with the docketing fee.  An original notice mistakenly filed with appellate clerk is deemed to have been filed that day with the trial court clerk.  The appellant must serve the notice on all parties to the trial court’s judgment or appealable order.

The notice must contain:  (1) the identity of the trial court and style and cause number of the case; (2) the date of the order being appealed; (3) a statement that the party filing the notice desires to appeal; (4) the identity of the court to which the appeal is taken; and (5) the name of each party filing the notice.  In accelerated appeals, the notice must also state that the appeal is accelerated.

Any party who wants to alter the trial court’s judgment must file its own notice of appeal.  But an appellee need not file its own notice of appeal to request an equal or lesser judgment based on an independent ground of recovery or defense or to assail the jury’s findings when the trial court granted judgment notwithstanding the verdict.

In appeals from jury trials, a notice of appeal must be filed within 30 days after the judgment was signed unless a party filed certain kinds of post-judgment motions (usually a motion for new trial, to disregard jury findings, or for JNOV) within that same period.  If the proper post-judgment motion has been filed, or in some circumstances, if a request for findings of fact and conclusions of law was made within 20 days, the notice of appeal will be due 90 days after the judgment was signed.

For an interlocutory appeal, the appellant must file its notice within 20 days after the order was signed.  Post-judgment motions/requests do not extend this date.

A premature notice of appeal is deemed filed immediately after the trial court signs the judgment or order being appealed. If the order at issue is interlocutory, the notice is deemed filed immediately after the ruling is made final and appealable.

The court of appeals may grant the appellant an extension of time to file its notice of appeal under certain circumstances.

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That was the title of a CLE presentation I gave today to the San Antonio Bar Association's Appellate Practice Section.  In addition to "traditional" techniques—such as doing “law” work in trial courts; handling pro bono appeals; writing articles and giving speeches; bar association work; and networking with trial lawyers, industry professionals, and other appellate lawyers—my main focus was blogging.  I also briefly discussed a broader internet marketing strategy involving Twitter, Facebook, LinkedIn, TexasBarCircle, and Avvo, among other possibilities.

I enjoyed giving this talk and would consider "taking it on the road" if the opportunity arises.  The concepts aren't limited to appellate practice.  That's just where I've applied them.

To the SABA Appellate Practice Section, thanks again for inviting me!

10/28/08 Update:  I am posting my PowerPoint presentation here.  Thanks to Kevin O'Keefe for allowing me to borrow substantially from his work product on blogging and social media.

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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.  For example, the Third Court of Appeals' current IOPs appear here.

The IOP postings started with a survey conducted by the State Bar Appellate Section's Bench-Bar Liaison Committee, the results of which were published in The Appellate Advocate in February 2005 and updated in March 2007.  The purpose of the survey was to identify key information needed to practice effectively before each court.  The Section ultimately persuaded the courts to "take ownership" of the survey and post the information on their respective sites.

The IOPs are a useful and informative tool.  With this information readily available, consulting the IOPs before filing documents in a particular appellate court is just good practice.

The Twelfth Court of Appeals in Tyler is the only intermediate appellate court that hasn't posted its IOPs on its web site.  Doing so would not only benefit practitioners and litigants, but would surely cut down on administrative headaches caused by errors that could have been avoided had the IOPs been available.  Here's hoping the Twelfth Court comes around and joins the transparency movement soon.

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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 and choose not to engage appellate counsel.  The entire series is available through this link.

Greg has put a lot of thought into these posts and will be putting up more as time permits.  Thus far, he has covered some reasons why trial lawyers think they should handle their own appeals—broadly stated as those related to ability and those related to economics—as well as some of the potential pitfalls that come into play in that scenario.  Overall, I agree with his view that plenty of trial lawyers have the tools to handle appeals, but for various reasons would rather not or simply shouldn't.

I'd like to add something to the discussion,   In my view, an appellate specialist brings three things to the table that trial lawyers and their counsel don't always appreciate fully:

• knowledge of and familiarity with the appellate-court system, rules, and players;
   
• special training and skill in the art of written and oral appellate advocacy; and
   
• a dispassionate, neutral viewpoint helpful to an honest evaluation of the case.

Greg has also covered a client consideration that parallels some trial lawyers' belief that appellate work is "just litigation."  The following comments were particularly thoughtful:

The client consideration that parallels the lawyer’s belief that “it’s just litigation” is really an absence of consideration.  That is, many clients may see no difference at all between their trial court action and the appeal.  The client is only likely to note the differences if the lawyer points them out.  And if the lawyer doesn’t see them, the lawyer cannot point them out.  Under these circumstances, the only time many clients are likely to seek an appellate attorney is if the client is genuinely displeased with the trial lawyer’s services.

However, I think this situation is changing over time.  I suspect that clients, like all consumers, are becoming more and more knowledgeable all the time about the services they receive.  The inquiries I receive from lay readers of my blog tell me that clients are learning that there is a difference between trial work and appellate work.

Clients almost always want a specialist when one is available.  An employment discrimination plaintiff doesn’t seek a personal injury lawyer when a plaintiff’s employment lawyer is available.  Over time, I expect more and more clients will seek new representation on appeal, and won’t need their trial lawyers to put them on notice of the differences between trial and appellate work.  They will challenge their trial lawyers’ unspoken assumption that the trial lawyer is always the right person to handle the appeal.

As Greg adds items to the series, I'll make a point to post about them here.

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As discussed previously, Third Court of Appeals Justice Diane Henson spoke to the Austin Bar Association's Solo and Small Firm Section last week.  With her permission, I am posting a copy of her handout here.

Justice Henson gave a useful overview of how the Third Court conducts its business and offered some helpful briefing and oral-argument tips.  One thing I learned was that the Court doesn't have access to Westlaw, so advocates should consider providing a Lexis cite for opinions not published in the South Western Reporter.

The following point also stuck with me:  Don't ask the Court to reschedule an oral argument unless you have a very good reason.  Aside from the fact that oral argument is not granted in most cases, the argument calendar fills up pretty far in advance because the Court is required to give the parties 21 days notice of the setting.  A valuable time slot may go unfilled because of a late cancellation.

As a Westlaw subscriber, I haven't figured out an easy solution to the Lexis issue, though I would just include a copy of the opinion in my appendix if it were important enough.  On rescheduling, one of my clients actually benefitted from a late cancellation earlier this year when the clerk called and asked if I could argue a case the following week.  Fortunately, the case was not overly complicated, so we were able to pull it off.

If you have a case going to the Third Court of Appeals or questions about Texas appellate practice generally, please don't hesitate to contact me to discuss whether I can help.

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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 good idea to publish it in the print edition as well.)

In honor of Constitution Day, Justice Willett discussed the U.S. Supreme Court's recent Heller decision (the D.C. gun-ban, Second Amendment case) and the parties' and Court's reliance on a new, fully indexed online library of constitutional source materials created by ConSource.  Justice Willett, who sits on ConSource's national advisory board, describes it as "a nonprofit with this singular goal:  granting direct access to our Founders' words."

In his blog post, Don Cruse mentioned the Debates in the Texas Constitutional Convention of 1875 as something of a state counterpart.  As Don noted, though, "[i]t’s not as lovingly annotated as its federal equivalents, but it does shed at least a little light on some of the more mysterious parts of our constitution."

These are undoubtedly useful resources.  But honestly, I don't often analyze  federal or state constitutional provisions in my practice.  For most folks like me, better documentation and dissemination of state statutory legislative history would be more useful.  When someone creates a nonprofit entity dedicated to that purpose, just tell me where to send a check.

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Over at his Legal-Writing Blog, Prof. Wayne Schiess offered up what one of his students wrote after expressing the desire to become an appellate lawyer and after working in the appellate-practice group at a law firm:

I learned some valuable lessons about appellate practice, and the difference between enjoying something in school and enjoying it in a law-firm setting.  The appellate group at the firm was very busy.  The partner I worked under was churning out two to three briefs a week. In my final few weeks at that firm, he gave me an opportunity to write a brief completely by myself.  It was an eight-page reply brief regarding a mandamus request to stop the discovery of certain documents.

Over the course of the next two weeks, I pored over the trial record, the appellee's brief, and the privileged documents.  I enjoyed it just as much as I had enjoyed brief writing in school.  But the time pressure was much greater, and the ability to fine tune and perfect my work was much less.  In the end, the experience made me realize something critical: Legal writing, on a high level, can be rewarding and interesting, but it can also be utterly draining.  I realized why appellate lawyers at law firms are stereotypically labeled as the smartest lawyers at the firm.  The fact that they can come to work, day in and day out, and spend hours thinking and writing at such a level makes them nothing less than brilliant, if you ask me.

Prof. Schiess wrapped up the post by saying, "Hats off to all you appellate lawyers, then."

I commented and added the following two cents:

That is indeed valuable insight.  Too often, law students have a pie-in-the-sky view of what appellate practice is really like.  Yes, you're more in control over your daily schedule than trial lawyers usually are.  But the average billable hour as an appellate lawyer is far more challenging mentally.  (And I should know, having done both for most of my career, though I'm heavily tilted toward appellate work now.)  Week after week of brief after brief can wear on you, but we press on because we enjoy the work and the challenge of changing (or holding onto) the result.

Thanks to Prof. Schiess for starting this discussion and to Elana Einhorn for bringing his post to my attention.

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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 in eight years, the Court ended the term with fewer cases than were left at the end of the prior term.
   
• With the number of overall filings down, the statistical chances of getting a petition granted have risen to about 15 percent.  The grant rate nearly doubles in cases in which the Court requests full briefing.
   
• The average time for a decision on a petition for review is 166 days.  Mandamus petitions average 123 days.
   
• In argued cases, the average time from initial filing to issuance of opinion is 28 months, ranging from a low of 11 months to a high of 54 months.

Pam also takes a detailed look at the Court's docket by subject matter.  She further identifies the cases on what she calls the "shadow docket"—those pending for more than 12 months without a decision to grant or deny.

Texas Lawyer mentioned Pam's paper in today's issue.

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The State Bar Appellate Section officially rolled out its re-designed website today.  The new, user-friendly interface is full of useful information and contains links to a number of handy resources.  I suggest that anyone reading this blog visit the new site and bookmark it for future reference.

Among the site's new features is a permanent link to the current issue of the Section's quarterly publication, The Appellate Advocate (of which I am editor).  We have also included a new author/title/subject index and a special page linking to all of the judicial interviews published to date.  Finally, we have arranged for Hein Online to archive all past issues in searchable form, which will be made available to Section members at no charge.  The archives are in the process of being populated and will be available within the next few weeks.

Our outgoing Section Chair, Doug Alexander, deserves credit for spearheading this project,  and Steve Hayes should be commended for the fine job he did working with the designer to get things just right.  And on behalf of The Appellate Advocate, I would like to thank Rich Phillips for his help in getting the ball rolling with Hein.  All in all, this was a great team effort.

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This is the second installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "What kinds of orders are subject to appeal in Texas?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

Generally, a trial court's rulings in civil cases are not subject to appeal until a final judgment has been rendered.  To be final, a judgment must dispose of all parties and issues.  No particular form or “magic words” are required.

The tests for finality depend on whether the judgment at issue followed a conventional trial on the merits.  If so, finality is presumed unless the judgment is intrinsically interlocutory or the court ordered separate trials on certain issues.  When a judgment is presumed final and the presumption is not rebutted, claims that are not mentioned explicitly in the judgment may be disposed of by implication.

A judgment rendered without a conventional trial on the merits is final only if it actually disposes of all claims and parties or states with unmistakable clarity that it is a final judgment as to all claims and parties.  The second part of this test is met by including language such as “this judgment finally disposes of all claims and all parties and is appealable.”  This analysis may require reviewing the record to determine what claims were asserted against what parties and which claims the court intended to address.

The general finality rule has several statutory exceptions.  The most common examples of appealable interlocutory orders are ones that:

• appoint a receiver or trustee, or overrule a motion to vacate an order appointing a receiver or trustee;
   
• certify or refuse to certify a class;
   
• grant or refuse a temporary injunction, or grant or overrule a motion to dissolve a temporary injunction;
   
• deny a motion for summary judgment based on an assertion of immunity by an individual officer or employee of the state or a political subdivision;
   
• deny a motion for summary judgment based on a claim against or defense by a member of the media or a person whose communication is published, arising under constitutional free speech or free press provisions or the state libel statute;
   
• grant or deny a special appearance, except in a suit under the Family Code;
   
• grant or deny a plea to the jurisdiction by a governmental unit;
   
• grant or deny a motion to dismiss a health care liability claim based on expert-report requirements;
   
• deny a motion to compel arbitration or grant a stay of arbitration; or
   
• affect a party in a multi-plaintiff venue contest.

Texas also has a little-used “permissive” appeal statute authorizing review of an otherwise-unappealable interlocutory order involving a controlling question of law.

Interlocutory appeals are accelerated by rule and must be perfected within twenty days after the trial court signs the order being appealed.  In most cases, an interlocutory appeal will stay commencement of a trial pending resolution of the appeal.  All proceedings—not just the trial setting—are stayed in interlocutory appeals involving class actions, government immunity motions for summary judgment, and government pleas to the jurisdiction.

Recent statutory amendments have significantly expanded the Texas Supreme Court’s jurisdiction to review interlocutory orders, which historically have been considered final in the courts of appeals.

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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 restructured Rule 28, which governs accelerated appeals.  Rather than trump statutory perfection deadlines, the revision clarifies (through the comment to the 2008 changes) that any statutory deadlines will control.

Special thanks to Lisa Hobbs for bringing these orders to my attention.

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This is the first installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "How is the Texas appellate court system structured?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

Texas has 14 intermediate courts of appeals, each of which hears both civil and criminal cases.  The intermediate courts are located in Houston (1st and 14th Districts), Fort Worth (2nd District), Austin (3rd), San Antonio (4th), Dallas (5th), Texarkana (6th), Amarillo (7th), El Paso (8th), Beaumont (9th), Waco (10th), Eastland (11th), Tyler (12th), and Corpus Christi (13th).  Generally, each court draws cases from its assigned geographic region, although transfers sometimes occur through a process known as "docket equalization."  There are some other jurisdictional quirks, as a handful of the state's 254 counties fall into more than one appellate district, and the state's most densely populated region is served by two intermediate appellate courts (1st and 14th).

A court of appeals has appellate jurisdiction in all civil cases over which the district or county courts have jurisdiction when the amount in controversy or the judgment exceeds $100, exclusive of interest and costs.  The court of appeals has final authority on all factual issues—applying standards of review, it can “unfind” facts the jury found and review the jury’s failure to find certain facts, but it cannot simply substitute its judgment for the jury’s.

Texas is one of only two states with a dual high-court system.  (Oklahoma is the other.)  The Texas Supreme Court has jurisdiction over civil cases as described below.  The Texas Court of Criminal Appeals is the criminal-law equivalent to the supreme court.

The supreme court's jurisdiction is limited to questions of law.  Among the statutory jurisdictional grounds, the following are most common:

• the justices of a court of appeals disagree on a question of law material to the decision (“dissent jurisdiction”);
  
  
• the decision conflicts with a prior decision from another court of appeals or of the supreme court on a question of law material to the case (“conflicts jurisdiction”);
  
  
• the case involves the construction or validity of a statute; or
  
  
• it appears that the court of appeals has committed an error of law, and that the error is of such importance to state jurisprudence that it requires correction.

Although the supreme court cannot decide fact issues of fact, it is the ultimate arbiter of the law. The supreme court may review the court of appeals’ decision to make sure it applied the correct legal standards.

Members of the Texas appellate judiciary run in partisan elections and fill six-year terms.  When a justice leaves office during his or her term, the Governor appoints a replacement.  An appointee must run in the next general election to retain the position for the rest of an unexpired term.

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Now that the Texas Supreme Court has broken for the summer (sort of), I'd like to start a series I'm calling "20 Questions About Texas Appellate Practice."  My intent is to answer the questions someone unfamiliar with Texas appellate law might ask when faced with the prospect of taking or defending an appeal in the Lone Star State.

Here's what I've come up with so far: 

1.   How is the Texas appellate court system structured?

2.   What kinds of orders are subject to appeal in Texas?

3.   What is required to perfect appeal?

4.   If an appeal is not available, do I have any other options for obtaining higher court review?

5.   What are post-trial motions, and what is their effect?

6.   Is a judgment automatically stayed while the case is on appeal?

7.   What is the appellate record, and how do I go about getting it?

8.   What is a docketing statement?

9.   What rules apply to appellate briefs, and when must briefs be filed?

10.  What standards do appellate courts use when reviewing a trial court’s rulings?

11.  How long will an appeal take?

12.  What will an appeal cost?

13.  Will the court of appeals hold oral argument in my case?

14.  What can I expect from oral argument?

15.  What are my chances for obtaining relief on appeal?

16.  What are my options if I lose in the court of appeals?

17.  How does the Texas Supreme Court’s petition for review process work?

18.  When does an appellate court’s judgment become final and enforceable?

19.  Does Texas recognize appellate practice as a specialty?

20.  What value does an appellate specialist add to a trial team?

Each question will be the subject of its own post.  As I go through them, I will update this post to hyperlink each question to its respective answer.  The list is flexible, so if you have a question that you don't think I intend to cover, please send it to me, and I'll see about working it in.

As always, comments are welcome.  Stay tuned!

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This past Saturday marked the second anniversary of my law firm.  My sentiments today are much the same as when I wrote this post marking the first year:

One year ago today, I departed big firm life to start my own appellate boutique—if you can call one lawyer a boutique!  The result has exceeded my expectations in almost every way.  While I am grateful for the opportunities I had at Fulbright & Jaworski and the excellent experience I obtained there, my current practice is a much better fit for my personality and work style, and it is also better for my family (although my wife would say that I don't work any less).  Special thanks to all the folks who have referred cases to me or hired me over the past year.  Without you, I wouldn't be posting this message.

I am fortunate to continue working on a number of interesting matters with great clients who are also really great people.  In this day and age, that makes all the difference in the world.

I remain thankful to those who have sent me referrals or retained me to work alongside them on their own cases this past year.  The continued success of my practice depends on these existing relationships and on developing new ones.  If you have a matter that could use the attention of an appellate specialist, please don't hesitate to contact me to discuss how I can help.

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Several months ago, Tyler appellate lawyer Jeff Rambin contacted me for input on a blog he was putting together focusing on appellate matters in East Texas.  Like me, Jeff signed up with LexBlog, whose designers did just as good a job with his blog as they did with mine.

I'm finally getting around to giving the Tyler Appeals Blog its own link in the "Texas Law Blogs" category on the right, although it could just as easily be listed under "Appellate Blogs."  I'm choosing the former, given Jeff's focus on Texas law.

A belated welcome to the blogosphere, Jeff, and congratulations on being named yesterday's Inter Alia Blawg of the Day!

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The State Bar Appellate Section and Texas Bar CLE are co-sponsoring the 22nd Annual Advanced Civil Appellate Practice Course, which is set for September 4-5, 2008 at the Four Seasons Hotel here in Austin.  The popular Appellate Boot Camp will take place on September 3 and the Section's annual meeting is scheduled for September 6, to be followed by a cocktail reception with the judiciary.

I have attended this seminar for many years and strongly recommend it to any lawyer who handles appeals with any regularity or who is interested in doing so.  A brochure with registration information is available here.

Aside from its timely topics, informative speakers, and excellent written materials, the best part of this program may be what has become an annual Appellate Song Lyrics Contest, in which contestants are asked to alter the lyrics of a well known song to give it an "appellate" touch.  You will find the contest rules here and in the Summer issue of The Appellate Advocate, which should be hitting Section members' mailboxes in the next couple of weeks. The contest submission deadline is 5:00 p.m. on Friday, August, 15.

To give you an idea how creative (and fun!) appellate lawyers can be, here is last year's winning entry, set to the tune of Paul Simon's "50 Ways to Leave Your Lover":

50 Ways To Waive Your Error

The problem's all in your record she said to me.
The answer is easy if you brief it legally.
I'd like to help you but your objection's absentee.
There must be fifty ways to waive your error.

She said it's really not my habit to advise.
Furthermore, I hope my counsel won't lead to your demise.
But I'll repeat myself so the court's words won't surprise.
There must be fifty ways to waive your error.
Fifty ways to waive your error

CHORUS 1:
You just fail to object, Hecht
Leave it outta the brief, Chief
You don't need to be seen, Green
Just get it denied PC
Don't make a bill, Phil
just take a big chill pill
don't timely appeal, O'Neill
and get it denied PC

She said it grieves me so to see you in such straits.
I wish there was something I could do to lower your rates.
I said I appreciate that, as again she explicates.
About the fifty ways...

She said why don't we both just work on it all night.
And I believe by the morning you'll begin to see the light.
The error's jurisdictional, my liability is slight.
There must be... fifty ways to waive your error
Fifty ways to waive your error

CHORUS 2:
You just fail to object, Hecht
Leave it outta the brief, Chief
don't bother to call, Paul
Just get denied PC
Just say you forgot, Scott
The issue's long gone, Don
it's already stale, Dale
And it's been denied... PC

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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 fill an open seat on the Court.  His chambers were across the hall, and he often poked his head in to say hello or to drop off his latest revisions to a draft opinion.  "Shorter!  Simpler!" were the most frequent comments.  He thought the Court's opinions should be easy to read and understand, and he had no difficulty expressing himself—always politely and respectfully—if he thought a draft wasn't true to the law.

After he "retired" to become a partner at Hughes & Luce (now K&L Gates), Justice Baker remained a mainstay in the appellate bar.  When he wasn't speaking at CLE functions, you could count on him sitting near the front row, listening attentively.  The seriousness of his illness was obvious when he missed the UT Appellate Seminar and related functions late last month.

Justice Baker set the bar high for appellate judges and practitioners alike.  We should all strive to meet his standards.

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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.

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I attended the Texas Supreme Court Historical Society's annual John Hemphill Dinner last night.  I believe all the justices were there, and the big ballroom at the Four Seasons here in Austin was packed as always.

Professor Mark Steiner from South Texas College of Law was the keynote speaker, and he talked about his new book An Honest Calling: The Law Practice of Abraham Lincoln.  We don't often think of Lincoln as anything but the President who gave the Gettysburg Address and issued the Emancipation Proclamation.  It was interesting to learn more about Lincoln the lawyer.

In particular, Professor Steiner addressed Lincoln's proclivity as an appellate practitioner.  The joke of the night, paraphrased as best I can remember it this morning, went something like this:  "Lincoln even handled an appeal in Texas.  Rumor has it that the Texas Supreme Court will issue its opinion in the case this summer."

The room erupted with laughter.

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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.  Many of the volunteers are neither family lawyers nor trial lawyers and are unfamiliar with the steps required to preserve the appellate record or to prosecute an appeal.  These lawyers could use an appellate mentor now.

There is a mechanism in place for you to register if you choose to help.

The online resource and communication center for judges and attorneys handling child abuse cases is located at http://www.lawyersforchildren.org/.

You do not have to register to use the resource center to volunteer your services.  Simply go to the blue menu bar (at the top of every page) and click on the tab for “Pro Bono” and then click on “Volunteer for Pro Bono Network.”  You can designate the areas of assistance and types of assistance you would like to provide on the on-line form.  Appellate law, trial skills, trial preparation, and discovery are among the many areas in which you can mentor another attorney.  Please check the box for “Eldorado Children” and then all other areas that apply.

The list of those who register to provide pro bono services is accessible only by judges and attorneys who register to use the resource center.  Texas Lawyers for Children maintains tight security over the site, and verifies that those who register are the judges and attorneys they claim to be.

If you need any help signing up for the pro bono network, the Texas Lawyers for Children Help Desk number is 800-993-5TLC (5852).  The Help Desk lines are answered Monday – Friday from 11:00 AM - 6:00 PM.

In addition to both sections' outstanding appellate pro bono initiatives, this program presents a wonderful opportunity for appellate lawyers to help those in need of their expertise.

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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.)

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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.

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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.

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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.

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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.

• TRAP 9.3 reduces the number of copies of certain documents a party must file with the Supreme Court and Court of Criminal Appeals.  Great.  Now please give us e-filing.
  
  
• TRAP 9.8 allows appellate courts to use fictitious names or initials in certain family law cases to protect the privacy of minor children.  A sensible move.
  
  
• TRAP 10.1(a)(5) eliminates the certificate-of-conference requirement for motions for rehearing and motions for en banc reconsideration of panel decisions.  It's about time.  Why did it take more than 10 years after the new TRAPs were adopted to fix this quirk?
  
  
• TRAPs 28.1 and 28.2 establish a more uniform appellate timetable for accelerated appeals and add new procedures governing agreed interlocutory appeals.
  
  
• TRAP 38.1 allows parties to include optional written statements regarding oral argument in their briefs.  A lot of us were doing this anyway.
  
  
• TRAP 39  provides the grounds on which the intermediate appellate courts may determine that oral argument is unnecessary.  While well intentioned, this change is meaningless as a practical matter because the court of appeals doesn't have to give the parties a reason for denying oral argument.
  
  
• TRAP 41.3 addresses the precedent that applies in cases transferred from one court of appeals to another for docket-equalization or other purposes.  The transferee court is to apply the law of the transferor.  I always thought that the courts of appeals were to apply the law of Texas, not their own version of it.  This could get interesting if the transferee and transferor courts are split on a given issue.
  
  
• TRAP 49 governs panel rehearing and en banc reconsideration, including new provisions clarifying the procedures for seeking en banc review.
  
  
• TRAP 52 re-focuses the verification requirement in original proceedings from factual statements in the petition to a certification that the filer has reviewed the petition and concluded that factual statements are supported by record evidence.  This change should allow counsel to do the verifying, which will help speed the process of preparing and filing the petition.
  
  
• RJA 15 addresses appeals from trial courts in counties falling in more than one appellate district (Texarkana and Tyler, and Texarkana and Dallas).  When separate appeals are properly filed in more than one court of appeals and the parties cannot agree to consolidate, the trial-court clerk is to randomly select one of the appellate courts for consolidation.  This rule wouldn't be necessary if the legislature would revamp the appellate districts and eliminate the dual-jurisdiction counties. 

The Court is accepting public comments on the proposed changes through June 30, 2008.  The amendments, with any changes, will take effect September 1.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 may be able to do both without giving up your client's appellate rights.

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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:

• analyze claims and damages;
• identify legal trends that could impact the case;
• help focus discovery efforts;
• create better trial motions and briefs; and
• attend critical hearings to build credibility and assist the court.

Difficult as it may be, trial lawyers and their clients should break out of the mindset that appellate lawyers should only be consulted in the biggest cases or after an adverse decision has come down.  As Leane explains, appellate counsel retained early in the process can add a great deal of value along the way.

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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.

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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.

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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.

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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."

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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.

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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.

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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!

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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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