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

Though somewhat afield from this blog's primary focus, the topics of electronic discovery and computer forensics should concern anyone practicing law in this day and age.  I am therefore pleased to announce that nationally recognized expert Craig Ball—a board-certified trial lawyer in his own right—will speak to the Austin Bar Association's Solo & Small Firm Section at noon on Thursday, May 22, 2008 at the Austin Bar office.  (In case you're wondering, as the Section's Program Co-Chair, I'm the guy responsible for lining up speakers.)

The event is free for Section members, and others may attend for a nominal charge.  If you'd like to attend and reserve a catered lunch, please contact Bill Biggs at wbiggs@sbcglobal.net.

• Print
• Comments
• 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

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.

• Print
• Comments (3)
• Trackbacks

Following up on this post, about 300 Texas lawyers have petitioned the Court of Criminal Appeals to adopt a rule permitting the e-filing of petitions, motions, and other documents in death penalty cases.  (UPDATE:  Per this news report, the CCA has agreed to allow e-mail filingfor emergency motions in death penalty cases and other "extraordinary matters.")

As mentioned here, the Texas Supreme Court allows parties to e-mail documents in emergency situations, although it doesn't consider them filed until it receives paper copies.  Change is on the horizon, however, as the state legislature appropriated $2.3 million in the current budget cycle for the State Office of Court Administration to start working on the Texas Appeals Management and E-Filing System.  As with anything government-related, it won't happen quickly, but it will happen.

(Hat tip to the Tex Parte Blog.)

• Print
• Comments (1)
• Trackbacks

Austin Lawyer Chuck Herring is circulating a petition to be submitted to the Court of Criminal Appeals (download PDF here), along with the following message:

RE: Rule-Making Petition To Permit E-Filing in Death Penalty Cases

You may have seen the extensive press reports concerning the recent actions of Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals.  In a death-penalty case (Richard), she allegedly refused to permit Mr. Richards lawyers to file papers after 5:00 p.m. on the very day when he was scheduled to be executed.  The lawyers computer had crashed, and they asked for only a twenty minute extension of time to permit the filing which ordinarily the Court grants routinely in death penalty cases when execution is imminent.  On that same day the United States Supreme Court had granted certiorari review on the same point that Mr. Richards's lawyers attempted to raise on his behalf concerning the constitutionality of lethal injection.  Thus, almost certainly a stay of execution would have been granted if Judge Keller had permitted the filing.  She also concealed her unilateral ruling from other judges on the Court, some of whom have publicly criticized her conduct.  As a result, Mr. Richard was executed at 6:00 p.m.on a day when he should have lived.

The press has reported that some twenty prominent Texas lawyers—including a former Bar president and various law professors—have filed a judicial disciplinary complaint against Judge Keller.  Press coverage and editorials across Texas, the country, and even in other nations, have condemned both Judge Keller's actions and the Texas system of justice. . . .

The Richard case dramatizes a glaring deficiency in the Courts procedures:  the Court does not permit e-filing (filing by electronic means).  Many courts and agencies, of course, permit e-filing.  Some require e-filing.  If the Court of Criminal Appeals had permitted e-filing in the Richard case, his lawyers would have been able to file the papers even by the 5:00 p.m. deadline that Judge Keller unilaterally imposed.

Therefore, to help avoid a recurrence of such a tragic, unnecessary execution, lawyers across Texas are joining together to petition the Court to adopt a rule to permit e-filings in death-penalty cases.

Please take a moment to review, sign, and return the attached petition, so that we can help avoid another similar malfunction of justice—and please circulate this petition to other attorneys who may be willing to sign the petition.

Please mail or email (pdf) completed petitions for delivery by Wednesday, October 24th, to:

Chuck Herring
Herring & Irwin, L.L.P.
1105 W. 12^th Street
Austin, Texas 78703
email: cherring@herring-irwin.com

• Print
• Comments (1)
• Trackbacks

I don't practice criminal appellate law, and I don't ordinarily follow the the Texas Court of Criminal Appeals, but even I notice when the CCA makes front-page news for the wrong reasons.

In case you haven't heard, the media is lambasting the CCA (more specifically, Presiding Judge Sharon Keller) for refusing to keep the clerk's office open past 5:00 to accept a last-minute filing in a death penalty appeal.  Earlier the same day, the U.S. Supreme Court granted certiorari in a Kentucky case challenging lethal injections as cruel and unusual punishment, and Texas death row inmate Michael Richard was scheduled to die by lethal injection that evening.  The media coverage provides the details, but because of Presiding Judge Keller's decision, the Richard execution went forward without the possibility of court intervention on potentially meritorious grounds.

The Texas Supreme Court doesn't make life-or-death decisions, and it is receiving its share of negative press these days.  But one of the things that court does right is allow electronic or after-hours submissions (with an advance call to the clerk's office, as apparently occurred in the Richard case) to get emergencies in front of the Court when its decisions can still make a difference.  One would think that if a civil court can accommodate litigants when money is the only thing at stake, a criminal court could do the same in matters of life and death.

• Print
• Comments (1)
• Trackbacks

The State Bar of Texas has contacted a number of law bloggers for assistance in promoting its YouTube contest, "Lone Star Stories:  Texans on Justice."  I am happy to oblige.

The SBOT is touting this contest as the first of its kind by a bar association.  Follow the links for a copy of the press release and an upcoming article in Texas Lawyer.

The contest is part of President Gib Walton's public education initiative on the justice system and is intended to give all Texans a venue to share their vision of the promise of justice for all.  Two winners will receive $2,500 prizes and a trip to the January State Bar board meeting in Grapevine.  Entries will be accepted between October 15 and December 15.

Congratulations to the SBOT for taking on such a worthy project in such an innovative way.

• Print
• Comments (1)
• Trackbacks

Authoritative enough for the Fifth Circuit, apparently.  Last week, in Exxon Mobil Corp. v. Commissioner (note 1), a circuit panel cited the online encyclopedia for its definition of the accounting term "accrue."  (Hat tip to Appellate Law &Practice.)

Are internet-savvy clerks are showing their influence?  Should the Fifth Circuit rely on a wiki of uncertain authorship to define a term of art?

• 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

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

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

Short on time to edit a brief?  Looking for a way to help catch passive voice in your writing?  If you are a Microsoft Word user, I've got just the trick for you. 

In the Grammar Settings dialog box (Tools / Options / Spelling & Grammar), select grammar and style instead of grammar only.  With that change, Word will alert you when it locates passive voice, just as it highlights sentence fragments and misspellings.  There are several other items you can customize.

Thanks to Susan McDonald and Lynn Gaertner-Johnson for the tip.

• Print
• Comments
• Trackbacks

Yesterday's post at the Texas Law Blog has reinvigorated my interest in the "Small Is the New Big" discussion emanating from Seth Godin's original blog post and book by that title.  Other bloggers have discussed this concept in great detail, but the thumbnail version is that technology and a commitment to more personal service are allowing small businesses (including law firms) to compete with the corporate giants.  As a sole practitioner and former BigLaw attorney, I find this idea fascinating.

Extending the concept further, the Virtual Lawyer recently predicted a future in which "there will be big firms and small firms, but few in the middle.  "If that holds true, what will it mean for my practice?  Hopefully, in addition to validating my current career path, it will present an opportunity to work with an even broader network of lawyers than I do now.

• Print
• Comments (2)
• Trackbacks

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.

• Print
• Comments (2)
• Trackbacks

The Texas Supreme Court's web site has been updated to mirror the new court of appeals sites, which received facelifts last fall.  The Court's new home page includes a tasteful photograph of the justices in the courtroom and too many helpful links to mention.  Give it a look!

• Print
• Comments
• Trackbacks

Welcome to the Texas Appellate Law Blog!  For those of you who have followed my previous ventures into the blogosphere, Reversible Error (geared toward my personal experience transitioning from mega-firm lawyer to sole practitioner) and Court of Appeals Update (providing summaries of significant civil decisions from the Third Court of Appeals in Austin), my idea to re-tool and improve those projects sort of took on a life of its own, resulting in what you are reading now.  Since no one else seems to be publishing a general-interest blog about Texas civil appellate practice, I figured, why not me?

I am committed to developing this blog and making it a resource for appellate practioners, both the purposeful (like me) and the accidental (who should consider calling someone like me).  But I am starting to doubt whether I can do that and maintain two other blogs (one of which requires a considerable time investment in reading and summarizing cases).  Oh, and I also need to make a living practicing my craft.

So, I'm going to experiment with blending all of my ideas together in this format.  My more personal posts will involve practice management issues, and my case-related postswhile still focused largely on the Third Courtwill not go into quite as much detail as before.  Most likely, this blog will supersede the others entirely.

Please send me your ideas and comments, and I will do my best to post about them. I will also consider guest posts, if anyone is so inclined.  Thanks for visiting, and Happy New Year!

D. Todd Smith
Austin, Texas
Board Certified, Civil Appellate Law
Texas Board of Legal Specialization

• Print
• Comments
• Trackbacks