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

Even before the Texas Supreme Court began live webcasting oral arguments and archiving recent arguments last year (previously discussed here and here), the Court had ditched its old system of recording oral argument on audio cassette tapes.  Digital audio files from oral arguments dating back to 2004 are available through the Oral Argument Audio link on the Court's website.  Now, two new projects are continuing the Court's transition into the digital age.

First, the clerk's office is in the process of converting all the old oral argument cassettes to digital .mp3 files and making them available via the same link.  The Court used to charge for copies of oral argument tapes, but decided to preserve the arguments by converting them into digital files and to make them available to the public for free.  Audio of all oral arguments going back to 1989 will be available soon, and when complete, the project is expected to reach back to at least 1985.

Clerk Blake Hawthorne does not believe that any other state supreme court has made oral argument recordings dating back that far available on the web.  The Court's total expenditure on this project has been minimal (about $400) thanks to a cooperative agreement with Thomson West, who loaned the equipment necessary to convert the audio cassettes to digital files.  

Thomson West is also involved in the second project.  In exchange for providing transcripts of oral arguments dating back to January 2000—which will be available for free on the Court's website—Thomson West will be able to use video from the Court's oral arguments in a new service that will allow subscribers to search oral argument transcripts just as they do any other document.  The transcript search results will be linked to the oral argument video, so subscribers will effectively be able to search the oral argument video for words or phrases.

Anyone who reads this blog knows I'm a big proponent of technology, and digitization is an important way of preserving information that otherwise could be lost to history.  The Court and the clerk's office should be commended for these efforts.

Source:  Blake Hawthorne, Clerk, Supreme Court of Texas.  The Supreme Court of Texas Blog has also commented on these developments.

• Print
• Comments
• Trackbacks

Over at the relatively new Bartlett Blog, Tad Bartlett provides a blow-by-blow of the recent Fifth Circuit en banc arguments, including the In re Volkswagen venue case that’s generating a lot of discussion these days because it threatens the Marshall “rocket docket.” (See the recent discussion in Texas Lawyer and at the WSJ Law Blog.)  Tad’s comments about what he observed and heard before the arguments and at intermission were also very interesting.

Tad's blog covers Fifth Circuit issues in greater depth than I am currently able to provide.  If you follow that court, please be sure to check out what he has to offer.

• Print
• Comments
• Trackbacks

As mentioned in my last post, I've been tied up getting ready for an oral argument I had today before the Third Court of Appeals here in Austin.  The case is not the kind you would usually get that excited about, but we have a couple of good legal issues, and it got a fair amount of media attention when it was tried.  (I wasn't involved at that stage.)  More media coverage could be coming, depending on what happens with the appeal.

As I prepared, I was reminded of the things that make oral argument great.  Today, a big part of it was getting my client her day in court.  Then there is the thrill of back-and-forth dialogue with the appellate justices on narrow legal issues that wouldn't interest most people.

But one of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements.  As the appellant, if you can't persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you're probably going to lose.  As the appellee, the key is to identify and emphasize the reasons why the court should leave well enough alone.  Whichever side I'm on, it's a process I always enjoy.

• Print
• Comments
• Trackbacks (1)

I am preparing for an oral argument tomorrow, which explains my silence on a number of issues worthy of commentary, including media coverage of the Perry Homes v. Cull decision and Ted Cruz's new position at Morgan Lewis.  The Supreme Court of Texas Blog  and others have covered these issues well.  I'll get back to more regular posting soon.

• Print
• Comments
• Trackbacks

By this order, the Third Court of Appeals has canceled the oral argument on the application for emergency stay in In re Sara Steed, et al. (No. 03-08-00235-CV) and has summarily denied the stay.  The court also denied the stay sought in the companion case, In re Faithann Jessop, et al. (No. 03-08-00236-CV).

Before you rush to criticize this decision, consider the reason the court of appeals gave for it.

The court explained that the application for emergency relief complained about a two-page order signed on April 22 and alleged that this order failed to comply with Section 262.201 of the Family Code.  Following its own investigation, however, the appellate court learned that the district court had, on April 21, signed an eight-page Temporary Order Following Adversary Hearing and Notice of Hearing, which the relators neither referenced in nor attached to their emergency motion.  The April 21 order "makes explicit findings with respect to the requirements of section 262.201, temporary conservatorship of the children, possession of and access to the children, temporary child support, temporary medical support, access to medical records, the acquisition of information regarding alternate caregivers who are relatives of the children, and the best interest of the children."

The court of appeals concluded that the April 21 order, "on its face, addresses statutory requirements" and based its denial of temporary relief on that conclusion.  Whether the order—which requires the children to remain in the possession of the Department of Family and Protective Services—"is supported by sufficient evidence, is the product of a sufficient "full adversary hearing" as required by section 262.201, or is an abuse of discretion are questions for determination on the merits of Relators' Petition for Writ of Mandamus."

Moral:  When presenting a motion for temporary emergency relief to an appellate court, be sure and tell the whole story, not selected parts of it.  I don't know if the relators intentionally omitted the April 21 order or just made a mistake—I'm hoping the latter—but an appellate court's discovery that you have omitted significant or potentially dispositive facts can only harm your client.

• Print
• Comments (4)
• Trackbacks (1)

What does one have to do to get a case set for oral argument before the Third Court of Appeals?  It's a rhetorical question I've heard others ask recently.

Early last year, I discussed the perception that oral argument in Texas appellate practice is dying a slow death.  I asked how appellate practitioners are supposed to hone oral advocacy skills if the chances that argument will be heard in any given case are less than 20 percent.  I also asked how, given these general statistics, less experienced appellate lawyers are supposed to acquire the number of arguments necessary to qualify for the board certification exam.

The State Bar Appellate Section offers one potential answer to both questions:  participate in its appellate pro bono program, which now covers both the Third Court and the Texas Supreme Court.  The Third Court apparently will give priority to cases in the program for oral argument, so signing up for the program (using this form) and taking these cases could help increase one's oral argument experience.  The Section is to be commended for this effort.

In a follow-up post, I wrote about how some Third Court justices have stated that they generally favor oral argument and have suggested including a separate statement in your brief explaining why oral argument should be heard.  (Coincidentally, the supreme court is considering a change to TRAP 38 that would acknowledge the validity of such statements.)  Since then, other Third Court justices have said that a formal motion requesting oral argument may be considered favorably, even if oral argument was initially denied.

Now for the call-out.

I'm handling a case in the Third Court that involves a seven-figure judgment rendered after a rare Travis County District Court jury trial.  The case turns on three main issues, all of which the Texas Supreme Court has written on in the past few years.  Both parties requested oral argument in their briefs.

After the briefing was complete, I happened to review the Court's online docket and found a reference mistakenly indicating that my opponent had not requested oral argument.  Although the parties received no formal notice, a subsequent online docket entry indicated that oral argument had been denied.

I filed a motion highlighting the mistake and setting out the reasons why the case should be heard on oral submission.  The other side opposed the motion on the basis that it would delay a decision, even though the parties had not been notified of a submission date and the case has not appeared on the Third Court's submission calendar.  Per this postcard, the Court denied the motion without comment.

How many seven-figure judgments on jury verdicts with good issues will the Court be asked to review in 2008?  Has the Court already decided how the case will come out, thus rendering any argument futile?  If not, why did the Court deny argument in this (or any other) case?

• Print
• Comments (2)
• Trackbacks

If something looks too good to be true, it probably is.  So it goes with the notion that the Fourth Court of Appeals would begin regularly webcasting oral arguments through the St. Mary's Law School web site.

According to the Tex Parte Blog, the Fourth Court will hear two cases tomorrow on the St. Mary's campus.  The St. Mary's courtroom is set up for live webcasting, but the court's regular home at the Cadena-Reeves Justice Center is not.  No wonder we didn't see any official announcement.

Webcasting an intermediate court of appeals argument is still a good thing.  It just needs to be done on a wider and more regular basis.

• Print
• Comments
• Trackbacks (1)

Although I haven't seen an official announcement (or any publicity whatsoever), it looks as if the Fourth Court of Appeals will begin webcasting oral arguments through the St. Mary's University web site on March 5, 2008.

The Fourth Court would be the logical choice for expanding the webcasting program, considering that St. Mary's (also in San Antonio) provided all of the equipment and funding for the Texas Supreme Court pilot (previously discussed here, here, and here) and is presumably doing so again.  Until the Legislature appropriates the necessary monies or more Texas law schools step up, we can expect the other 13 intermediate appellate courts and the Court of Criminal Appeals to stay blacked out.

3/4/08 Update:  Sadly, it was too good to be true.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

The Texas Supreme Court issued no opinions with today's orders.  Interestingly, the Court denied the motion to recuse filed in In re Columbia Medical Center, Subsidiary, L.P. (No. 06-0416) (previously discussed here and  here), which reportedly had been set for oral argument with the mandamus petition next Thursday.

UPDATE: The Court's spokesman, Osler McCarthy, has confirmed that reports of a hearing on the Columbia motion were mere rumors.  Accordingly, I have taken down today's earlier post on that subject.  Ugh!

• Print
• Comments
• Trackbacks

Steve Merican over at the Illinois Appellate Lawyer Blog recently posted some interesting comments about the role of oral argument to the appellate decision-making process.  Within that post, he linked to an article he wrote entitled How to Write an Appellate Brief That Judges Want to Read and Answers Their Questions.

Like most appellate advocates I know, I'm a fan of oral argument in appropriate cases, such as when the law is unsettled.  But as a rule, to rip from Steve's observation while paraphrasing a Pat Riley quote, "your brief is the main thing."  The importance of presenting a persuasive, well written brief that anticipates the questions appellate justices might have can't be emphasized enough.

• Print
• Comments
• Trackbacks

In its occasional efforts to "ride the circuit," the Texas Supreme Court will hear arguments tomorrowApril 12 at Austin College in Sherman, Texas.  The arguments are part of the fourth annual Austin College Law Symposium.  No video webcast will be available.

Source: Osler McCarthy, Staff Attorney for Public Information.

UPDATE:  Thanks to Osler for pointing out my mistake on the date, which is corrected above.

• Print
• Comments (1)
• Trackbacks

Haynes & Boone's Mark Trachtenberg has an editorial in today's Houston Chronicle praising the Texas Supreme Court webcasts previously covered here and here.  Mark thinks the move to webcasting was wise because it makes the Court's business more transparent and will help educate folks about how our court system works. 

Here's hoping Mark's piece gets picked up in other media markets.  Its message is worth passing around.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments (1)
• Trackbacks

With this morning's live webcast of arguments before the Texas Supreme Court, a new era in Texas appellate practice has begun.  I was able to access the webcast and view the arguments without any problem.  The video feed—which has a certain "Court TV" look—appears on the left side of the screen, flanked by a brief summary of the case being argued.  A schedule of upcoming arguments, along with links to electronic briefs and summaries for each, appears on the main webcast page.

Bravo!

• Print
• Comments
• Trackbacks (1)

In a joint project, the Supreme Court of Texas and St. Mary's University School of Law will begin live Internet video streaming of the Court's oral arguments March 20.

"This represents not only a great service to lawyers around Texas, but an educational opportunity for law students, colleges, high schools and the public at large," said Chief Justice Wallace B. Jefferson.  "Broadcasting these arguments over the Web will enable anyone, anywhere to see how an appellate court grapples with some of the toughest legal issues our state confronts."

"We will shed light about how the Supreme Court decides its cases, whether to counter the misimpression that an appellate argument is like Perry Mason in front of nine judges or to dispel myths about how justices on the Court decide cases."

Internet broadcast of oral arguments will be available through either the Court's Web site or the St. Mary's law school site.  The video arguments will be available in archives at the law school Web site.

Webcasting oral arguments represents a partnership between St. Mary's and the Court working through the Office of Court Administration, which provides technological support for courts across Texas.  The Supreme Court courtroom has been equipped with five remote cameras, updated audio equipment and improved lighting.

Bill Piatt, the dean of St. Mary's law school, suggested the collaboration last year in a meeting with Justice Paul W. Green, a St. Mary's law alumnus.  "We are honored that the Court is allowing us to assist in making these important proceedings accessible to the public over the Internet," Dean Piatt said.

"The Court's initiative in bringing oral arguments to the people will greatly improve the understanding of the Court's work, thereby enhancing the administration of justice in this state."  Justice Green added that the webcasts also offer a benefit to lawyers who might be preparing for their first argument before the Court, enabling them to watch the Court in action before actually appearing for arguments, and to learn about its procedures and traditions.

Bruce Hermes, technology director for the Office of Court Administration who managed the project implementation, said initial webcasts will be monitored to determine the demand.  "We are set up for 300 simultaneous viewers," Hermes said.  "After the first couple of months, we will review it to see if that meets demand."

Chief Justice Jefferson said that, with the Legislature's additional financial support, which he is seeking this session, the St. Mary's webcasting project will rival the best in the nation.  "Together, with St. Mary's on this venture and with the Legislature's support on other initiatives, we hope to bring the justice system closer to people."

The Court has issued a policy, pending revision of Texas Rule of Appellate Procedure 14, allowing attorneys by motion to the Court to opt out of webcasting a particular argument.

Source for post:  Osler McCarthy, Texas Supreme Court Staff Attorney for Public Information.

• Print
• Comments
• Trackbacks (1)

This oral argument outtake, like the one posted here, comes from Reliance National Indemnity Co. v. Advanced Temporaries, Inc., argued before the Texas Supreme Court on October 18, 2006:

Counsel:  May it please the Court, counsel.  I am just thrilled as I can be to be here.  I've been doing this for 21 years, and I'm finally in front of the Supreme Court.

Justice Medina [at conclusion of argument]:  Was it worth the 21-year wait?

Thanks again to Pam Baron!

• Print
• Comments
• Trackbacks

Pasted below is a nugget collected by Pamela Stanton Baron, a leading Texas Supreme Court watcher/practitioner who either attends or listens to all of the Court's oral arguments.  More "outtakes" will follow periodically.  Thanks to Pam for allowing me to post them here.

From Reliance National Indemnity Co. v. Advanced Temporaries, Inc., argued on October 18, 2006:

Counsel:  And I want to commend the Court on City of Keller, which I think is a phenomenal opinion.  I think its the kind of comprehensive contribution to our jurisprudence that's uniquely within the province of this Court versus the Legislature.

Justice ONeill:  Oh, come on.

[laughter]

Justice ONeill:  He's going to be insufferable [presumably referring to Justice Brister, Keller's author].

• Print
• Comments
• Trackbacks

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."

• Print
• Comments
• Trackbacks

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.

• Print
• Comments (1)
• Trackbacks