Posted in Mediation/ADR

Using the Evaluative Approach in Appellate Mediation

D. Todd Smith


Last week, I spoke to the Austin Bar Association ADR Section about mediating cases on appeal. In my talk, I explored the differences in perspective between pre-trial mediation, in which most everything is in flux, and post-trial or appellate mediation, where a party has usually won or lost and the variables have shifted toward certainty. From there, I discussed the potential advantages of using an “evaluative” mediator knowledgeable about the appellate courts, the law, and the evidence.

Most mediators use a facilitative approach to help the parties arrive at their own proposals and potential solutions. The evaluative approach allows a mediator to more directly assess the relative merits of each side’s case and propose compromise based on the law and predicted outcomes. If used properly, I believe the evaluative approach can help parties resolve a dispute that otherwise could take years to work its way through the appellate system.

Appellate mediation is a service I’m now offering in my practice. If you have a case headed for appeal and would like to explore working with me as a mediator, please feel free to reach out to me directly.

Posted in Courts of Appeals, Rehearing

Motions for Rehearing or Reconsideration En Banc: Why Bother?

Maitreya Tomlinson

6324990_5dc95cc88a_oWhile appearing rhetorical, there is a very good reason to bother. My firm recently turned an appellant’s partially favorable result into full relief on rehearing. In doing so, we utilized the Texas appellate procedure rules, which allow parties to request that intermediate appellate courts reexamine their decisions: either by filing a motion for rehearing or a motion for reconsideration en banc.

Although not unicorn-like in frequency, Texas intermediate courts of appeals infrequently grant these motions. The statistics vary depending on the year and the specific court of appeals. However, research indicates that the success rate can be less than 20% and in many instances under 10%. Less than 10% is a daunting statistic, which would deter anyone who is accustomed to playing the odds. Continue Reading

Posted in Appellate Practice, Jury Charges

Soaking Up Some CLE

D. Todd Smith

IMG_1023I spoke today at TexasBarCLE’s Soaking Up Some CLE Program on South Padre Island—one of my favorite places to visit. My topic was “Jury Charges in Commercial Cases.” For anyone interested, my slidedeck appears here.

Today was the first time I’ve presented on this particular topic. As always, I learned a lot getting ready for it. I look forward to refining my presentation and giving it again.

I also took the opportunity to visit our new Rio Grande Valley office in Harlingen while in that part of the state. My firm has had a Valley office for more than five years now, and we enjoy the work we do down there, particularly in the Thirteenth Court of Appeals. I look forward to visiting more often.

Posted in Announcements

An Appellate Lawyer Walks Into a Bar…

D. Todd Smith


No, the headline isn’t a lead-in for an appellate lawyer joke. In all seriousness, I’m announcing my nomination to run for treasurer of the Austin Bar Association. This race will be contested, as one other candidate was also nominated to appear on the ballot.

Election as treasurer would put me on a path to becoming Austin Bar president for 2019-2020. The list of those who have held that position over the past 100-plus years includes some of Austin’s finest lawyers and judges. Almost none of them practiced appellate law as it exists today. Over the past twenty years, only one was board-certified before taking office.

I’m a busy appellate lawyer and the managing partner of my firm. So why do I want to take this on? The answer is simple. I believe in the Austin Bar’s mission of enhancing the legal profession, the administration of justice, and the community through education, networking, and public service. And I attribute much of my success as a lawyer to the connections I have made through this fine organization over the past decade. For me, the question really is, why wouldn’t I? It’s a great opportunity to give back.

Image courtesy of Flickr by w.marsh.

Posted in Appellate Practice

Are All JNOV Deadlines Created Equal?

Maitreya Tomlinson

163570784_b962c26d1e_oAs a young attorney, others advised me that, barring conflicting Texas Supreme Court precedent, Texas intermediate-appellate court holdings constituted the law of Texas. Naturally, with 14 appellate districts covering the great expanse we call Texas, there is ample room for disagreement between those districts. These disagreements can, in turn, set potential traps for litigants. Among other things, good lawyers earn their money by recognizing where these traps lie. (They also earn their keep navigating the maze of residual Latin woven in postjudgment motions like a motion for judgment non obstante veredicto, more commonly referred to as a judgment notwithstanding the verdict or JNOV). Continue Reading

Posted in Original Proceedings

What’s the Expiration Date on That Mandamus?

Maitreya Tomlinson

It doesn’t come up very often. In fact, as I type this, a number of soon-to-be filers are frantically drafting their petitions, compiling their records, and perfecting their emergency motions in reaction to a recent ruling. Whether to salve the recent wound of an adverse ruling or to preserve a fleeting right, parties typically file mandamus petitions soon after the precipitating event. Some clients have asked me, however, about the deadline to file a mandamus petition.


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Posted in Fifth Circuit, Motions

No More Telephone Briefing Extensions in the Fifth Circuit?

D. Todd Smith


In this post from several years ago, I expressed how pleased I was with the informal procedure by which the United States Court of Appeals for the Fifth Circuit accepted and granted routine briefing extension requests. At the time, the Court allowed the clerk’s office to approve short, unopposed extensions over the telephone and had dispensed with any requirement that counsel follow up with a confirmation letter.

Recently, I heard that the Fifth Circuit had changed this practice and no longer accepts extension requests by telephone. Needing an extension in a case I’m working on, I decided to see for myself.

Continue Reading

Posted in In-House Focus

In-House Focus: How to Win Cases by Being Nice

Laura P. Haley


My last post discussed the importance of avoiding career-limiting moves. Today, I’ll focus on how in-house litigators have the opportunity to learn information every day that they can and will use in future litigation—every single day.  That learning opportunity will happen if you keep your door open and are nice.

In-house legal departments handle a wide range of company issues: I handled the company’s litigation, but other folks handled contract drafting and negotiations with equipment vendors, subcontractors, and customers. Legal departments also often handle company compliance issues, like developing trainings on the Foreign Corrupt Practices Act or avoiding sexual harassment. These various activities invite contact with a steady stream of company employees.

Opening Doors

When they visited the legal department to talk with other lawyers handling other matters, company employees often also came to my office, stopping by to say hello or ask random legal questions. Sometimes employees needed information about probate matters, legal disputes with neighbors or landlords, recommendations for attorneys who handle criminal matters—the kinds of things neighbors ask. I referred them to the State Bar of Texas website, governmental websites for Harris and surrounding counties, and other sources of information they might not have known about. And we talked. Continue Reading

Posted in Ethics

Reporting Attorney Misconduct in Texas, Part III

6963115_434c62cc74_oIn the previous two installments of this series (Part I and Part II), we explored the requirement to report attorney misconduct. In this last installment, we explore the various State Bar of Texas resources that can assist in the determination of whether to report and whether to refer the attorney for help instead of discipline.

Ethics Resource Page

The State Bar provides a whole host of ethics resources for lawyers. They can be accessed here. From this page, attorneys can easily locate various governing and procedural rules, information about the grievance system, solicitation and barratry information, committee information, and numerous other valuable resources. Continue Reading

Posted in Ethics

Reporting Attorney Misconduct in Texas, Part II

23076321801_022d951734_oThis is the second in a three-part series exploring the duty to report attorney misconduct in Texas. Last week, we reviewed Texas Disciplinary Rule of Professional Conduct 8.03, which is the source of the reporting requirement. This post focuses on how courts and the Texas Professional Ethics Committee have treated the issue.

Case and Ethics Opinion Interpretations

Rule of Disciplinary Procedure 6.06 requires publication of appellate court and board of disciplinary appeals opinions involving attorney misconduct. But there are very few cases discussing Rule 8.03. In fact, I could not locate a single published opinion involving a lawyer who was disciplined for failing to report misconduct. Rather, many of the cases that address Rule 8.03 involve a court’s decision to report misconduct by lawyers appearing before the court. Continue Reading