Posted in Appellate Practice

Demanding a Recount: Appealing Election Challenges

Maitreya Tomlinson

The recent election reminded me of a brush that I had with election-related appeals. A few years ago, I fervently drafted a brief in a primary-contest appeal under a looming deadline. As I neared completion, my pregnant wife called to inform me that she was in labor. No problem, right? I’ll get the deadline extended. As my partner (who was scheduled to celebrate his wedding anniversary on a relaxing getaway and instead had to help finalize the brief) can attest, however, contesting election results present some unique considerations and can lead to their own demanding and inflexible deadlines. Continue Reading

Posted in Appellate Practice, Courts of Appeals, Texas Supreme Court

Election 2016: Some New Faces on Texas Appellate Courts

D. Todd Smith

8453568053_8102d2cb23_oAs in recent cycles, Republican incumbents and open-seat candidates for Texas appellate benches generally fared well in the 2016 general election. South Texas was the notable exception.

The election will not change the Texas Supreme Court’s composition—at least not directly—as incumbent Justices Paul Green, Eva Guzman, and Debra Lehrmann all retained their seats. Donald Trump’s victory in the presidential race might indirectly affect the Court, however, as Justice Don Willett remains in the national conversation about who will fill the late Justice Scalia’s spot on the U.S. Supreme Court.

Judge Mike Keasler will return to the Court of Criminal Appeals. His colleague, Judge Larry Meyers (who was elected as a Republican but switched parties) lost to Mary Lou Keel and will be moving on. Republican Scott Walker will fill an open seat on that court.

Republican incumbent Justices Sherry Radack (actually Chief Justice of the First Court of Appeals in Houston), Evelyn Keyes (First Court), Lana Myers (Dallas), David Schenck (Dallas), and Tracy Christopher (Fourteenth in Houston) will each serve another term.

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Posted in Appellate Practice, Oral Argument, Technology

How I’m Using My iPad Pro for Appellate Arguments

D. Todd Smith

I just completed my second Fifth Circuit argument using my big iPad Pro in a more prominent role than ever before. Inspired by Jeff Richardson’s post about how he used an iPad to prepare for and present an appellate argument, I thought I’d share how I’ve integrated the device into my preparation and presentation strategy.


Reviewing and marking up the appellate briefs and record is an essential component of argument preparation. For me, that once involved having hard work copies made from master versions in a physical file that sat on a shelf or in a cabinet somewhere in my office. We’re talking about an awful lot of paper to keep up with and store. Now that Texas appellate courts have joined the Fifth Circuit as all-electronic, it’s easier than ever for me to forego paper and maintain everything in digital form.

I use PDF Expert and Dropbox to sync files between my MacBook Pro and my iPad. Instead of paper work copies, I create an “OA” folder in Dropbox using this structure…
 Screenshot 2016-11-04 06.58.25


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Posted in Fifth Circuit, Oral Argument, Texas Supreme Court

A New Orleans State of Mind

D. Todd Smith

27460085441_51b3252313_o-e1477694494873-960x720I’m on something of an oral-argument streak. As of November 9, I will have argued five cases in the Texas Supreme Court or the Fifth Court of Appeals in the span of 18 months.

As I’m preparing for another trip to New Orleans, I thought about this post listing my colleagues’ favorite places to stay and eat. The Lafayette Hotel is reasonably priced for what you get, and its proximity to the Court can’t be beat. (I took the above shot during my last stay there, and the John Minor Wisdom Building is as close as those shown.) Hotel Monteleone has been great too.

I don’t think I’ve ever had a bad meal in New Orleans. Herbsaint is an easy walk across the street from the Lafayette and is quite good. If I have time on my way out of town, I like to eat lunch at Commander’s Palace in the Garden District. Awesome.

I’m always struck by the relative formality of New Orleans, where many nice restaurants require a jacket. Here in Austin, you will see shorts and flip-flops in some of the nicest places, and nobody thinks twice about it.

One downside to living in Austin is not being able to enjoy the city as if I were a visitor. I suppose I could justify staying in a hotel the night before a SCOTX argument, but I’ve never done it. I tend to sleep better in my own bed anyway.

Posted in Announcements, Blogs & Blogging

LXBN Feature Highlights Texas Appellate Law Blog

D. Todd Smith

I’m pleased to pass along the news that this blog was featured in the most recent installment of LexBlog Leaders, an LXBN series focusing on successful LexBlog Network blogs.

Screenshot 2016-10-01 10.22.45Among other topics, the interview covers my take on blogging success and how this site has evolved since its launch almost ten years ago. Anyone interested is welcome to check the story out: LexBlog Leaders: D. Todd Smith Has Always Seen the Value of His Blog.

I tend to be an early adopter, and having started the first blog on Texas appellate practice is a point of pride for me. I’m even prouder that the blog is still going and that the voices here are no longer just my own. To everyone who reads and supports what we do, I say thank you. I look forward to continuing this venture and seeing where it goes from here.

Posted in Appellate Practice, Perfecting Appeal

Getting the Scoop on Calculating Texas Appellate Deadlines

Maitreya Tomlinson

24347934616_bf266ef7db_oAppellate lawyers share some job-related realities with journalists, namely running up against deadlines. Although attorneys don’t rush to finish stories before a midnight printing, we do have to meet filing deadlines to seek relief from erroneous trial-court or intermediate-appellate court decisions. Knowing those deadlines (and how they are calculated) is paramount to correctly perfecting appeals. Lawyers can, at times, find solace in rule-based mechanisms to extend those deadlines if they miscalculate. But, attorneys should not exclusively rely on extensions to preserve their clients’ opportunities to seek appellate relief.

When Does the Clock Start?

Since counting should (hopefully) not be an issue, when perfecting a direct appeal in a Texas intermediate appellate, there are two related concepts to master. The first is what triggers the deadlines for filing a notice of appeal. The deadline is calculated from the date the trial-court judge signs the appealable judgment or order. Therefore, the proverbial clock starts ticking on the judgment’s/order’s signing date, not on the date the judge rendered the judgment and not on the day that the clerk filed the judgment. Continue Reading

Posted in Appellate Practice

Second Bites at the Summary-Judgment Apple (Part II)

Laura P. Haley

25397513282_4b60fca17a_oIn my last post, I addressed the significance of the burden in framing your response to a motion for summary judgment and in your appeal from an adverse summary judgment. In this post, I address getting your evidence in the record and keeping the other side’s out, amending your petition, and filing an appeal from an adverse summary judgment.

Did You Get That in the Record?

If you are the non-movant, your job is to point out the movant’s failure to follow the rules, get your evidence in the record and in admissible form, challenge the movant’s evidence, and get rulings. The last task is particularly important and can mean the difference between affirmance and reversal on appeal.

Get your evidence in the record and keep the other side’s out.

A movant in a traditional summary judgment or special appearance, must include all of her arguments and bases in her motion, and the evidence supporting her motion must be attached, in admissible form, and on file before the hearing. A movant cannot meet her burden simply based upon the allegations in the non-movant’s pleadings. Pleadings are not evidence, and the movant needs evidence to support her motion. Further, the movant cannot attach evidence to her reply to a response or file her supporting evidence after the hearing.

Appeals courts will reverse a trial court’s grant of summary judgment for a movant’s failure to strictly follow TRCP 166a. If the trial judge granted summary judgment despite the movant’s failure to follow the rule, do not despair! You can and should argue for reversal on appeal based on the movant’s failure to strictly adhere to the timing and evidence rules governing dispositive motions. Continue Reading

Posted in Appellate Practice

Second Bites at the Summary-Judgment Apple (Part I)

Laura P. Haley

4029472606_144a5580fc_oAll litigators file or respond to dispositive motions, including motions for summary judgment. Dispositive motions are an opportunity for trial attorneys to implement their trial strategy, using the facts in their cases to gain a tactical advantage, whether by eliminating claims or defenses, educating the judge, or poisoning the well. But dispositive motions also require litigators to consider their appellate strategy and to draft and argue motions and responses so that they are in the best position possible on appeal.

If you are a trial attorney who responded to a summary judgment motion, you lost, your client wants to appeal the trial court’s ruling, and you have limited experience filing appeals, I wrote this post, and the next, for you.


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Posted in Appellate Practice

A Law Student’s End-of-Summer Clerkship Report

D. Todd Smith


Editor’s Note: The following is a guest post from Brian Wortham, who completed a summer clerkship with our firm this week. Brian is a second-year student at St. Mary’s University School of Law.

After surviving my first year of law school, I was set to begin the time-honored tradition of finding a summer clerkship. I received an opportunity to interview with Smith Law Group, an appellate firm in Austin. During the interview with Todd Smith, Managing Partner, and Maitreya Tomlinson, Partner, we discussed how they had never had a clerk before, so this would be a first for everyone. Todd called me a week later with the good news that they would like me to serve as their “guinea pig.” I was excited, yet also felt the pressure to succeed so they would feel comfortable to hire a second clerk next summer.

On my second day, Todd gave me an assignment to draft, a “No Evidence Summary Judgment.” After asking what that was, I began to research the motion. I believe in the “sink or swim” motto, and it felt good to be working on something real rather than a theoretical class exercise. It felt good, until I looked at the revised product. I could recognize a few of my words, but for the most part, Todd had re-written the motion. Needless to say, I felt like I had sunk. One thing Todd said all summer is “I need to remember what I knew after my first year of law school.” Looking at it that way helped when comparing my limited experience with his twenty years as a lawyer. While I have so much more to learn, I noticed more of my own words being kept in motions as the summer progressed.

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Posted in Litigation Support

Confessions of a Litigation-Support Lawyer

D. Todd Smith


I have a confession to make: I’m doing a lot of litigation-support work these days. And I like it.

In one context, the phrase “litigation support”—like “contract lawyer“—can have an almost-negative connotation. It might imply document review, presentation assistance, or other services that are not high revenue generators or don’t require a law license at all.

The phScreenshot 2016-08-07 16.21.24rase has a far different meaning to appellate practitioners. I explain this second context in the short guide, Five Ways an Appellate Lawyer Can Make Your Trial Team Better, which is available for free through the link.

Some very capable folks I know use the phrase “freelance lawyer” to distinguish themselves from what we sometimes think of as contract lawyers. “Litigation support” accurately describes some things appellate lawyers do when they aren’t reviewing voluminous appellate records and filing appellate briefs. Until I think of something better to call it, I’ll just have to defy one perception of the label.

Image courtesy of Flickr by Mon Œil.