Posted in Appellate Practice, Ethics

Reporting Attorney Misconduct in Texas, Part I

5225067415_40b702f083_o“Nobody likes a tattletale,” said my mother when I would tell on my sister for various transgressions, like stealing my Barbie dolls. The lesson my mother was teaching was that I should deal with my sister myself. As members of a self-regulated bar association, however, Texas lawyers are required to report serious violations of the ethical rules. The failure to report can lead to discipline for the lawyer who witnesses a violation.

Often times, the facts giving rise to an ethical violation are unclear and, the witnessing lawyer may feel unsure about making a report. I suspect the fear of being wrong or labeled a “tattletale”/disgruntled opponent often stops reports from occurring.

My next few posts will explore the duty to report. The good news is that (1) the disciplinary rules anticipate a “measure of discretion” by the reporting lawyer, (2) the rules require reporting for only substantial violations that go to the heart of a lawyer’s abilities or suitability for practicing law, and (3) the bar provides resources to help a lawyer determine if he or she has a duty to report and, where substance abuse is involved, a way to help the offending lawyer instead of discipline.

Continue Reading

Posted in Appellate Practice, Oral Argument

Practicing Bathtub Law

D. Todd Smith


It may sound strange, but I practice bathtub law.

I don’t present myself as an expert in any substantive legal topic. To the contrary, as I wrote here several years ago:

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.

The bathtub metaphor compliments this description well. When I’m handling a legal issue, working on an appeal, or getting ready for oral argument, I learn (or re-learn) everything I need to know for that particular case, filling the tub to the brim. When the task is done, I pull the plug, let the tub drain, and start anew.

Hat tip to Thom Singer and Linda Smith, who discussed this metaphor on a recent episode of Thom’s podcast, Cool Things Entrepreneurs Do.

Image courtesy of Flickr by John Fink.

Posted in Litigation Support, Third Court of Appeals, Thirteenth Court of Appeals

We’re All Contract Appellate Lawyers

D. Todd Smith

15650921676_b57be1fb4b_oEvery so often, I hear about someone looking for a “contract appellate lawyer” to help with a particular case. Most of these inquiries are from other attorneys, but they sometimes come directly from the person in need of legal services.

A contract is fundamental to the relationships that provide business to appellate lawyers. In that sense, we’re all engaged on a contract basis. So, I’m left to wonder, what does the phrase “contract appellate lawyer” really mean? Let’s consider some possibilities.


Continue Reading

Posted in Litigation Support

Dream the Impossible Dream: Avoid Delay Caused by an Insurer’s Rehabilitation/Liquidation

Maitreya Tomlinson


I recently helped trial counsel avoid what has been a routinely granted stay in litigation when a defendant’s insurer is in rehabilitation/liquidation. In other words, even though the defending insurer was not a party in the litigation, trial courts would typically stay the litigation for six-months at a time (and longer) to accommodate resolution of the non-party insurer’s financial difficulties.

While this result might or might not raise a few eyebrows, this story isn’t much of a story without some background information. In this particular case, the Delaware Court of Chancery originally issued a rehabilitation order staying legal proceedings. The Delaware Court later issued a liquidation order after the insurer’s founder/president was indicted for making false statements to an insurance regulator. In its liquidation order, the Delaware Court explicitly restrained any legal action in which the insurer was obligated to defend an insured party. The defendants, who had received an earlier stay based on the rehabilitation order, moved for another stay pursuant to the liquidation order.

In their motion the defendants argued, almost by rote, that the Texas Insurance Code required trial courts to give full faith and credit to the Delaware liquidation order. They also argued that the principles of comity demanded the same.

The reasons trial courts grant these motions are not a mystery. The lack of similar precedent, or any helpful legal analysis, leaves them with little guidance in deciding whether to stay litigation. The Texas Supreme Court has decided that these orders require enforcement when the insurer is a defendant. See Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794-97 (Tex. 1992). It has not addressed whether the orders require enforcement when the insurer is not a party. In what seems notable at first blush, an intermediate appellate court has stayed a case when the insurer had a duty to defend a party. The court did so, though, without fully analyzing the issue. In the absence of a clear roadmap, it is easy to see why trial courts stay litigation involving insolvent defending insurers.

In our case, however, a comprehensive legal analysis demonstrated that the trial court should not delay litigation based on a non-party insurer’s financial situation. Plaintiffs, therefore, should consider opposing similar motions instead of resigning themselves to six-month-plus delays in deciding a case’s merits.

Image courtesy of Flickr by evan p. cordes.

Posted in Mediation/ADR

Did the Legislature Change the Mediator-Appointment Process in Appellate Courts?

D. Todd Smith

IMG_9672I spent much of last week and part of this week participating in a mediation training program. Among other things, I learned about a new statute, Chapter 37 of the Texas Government Code (SB 1876), which became effective on September 1, 2015. This statute prescribes how courts are to appoint mediators, as well as guardians ad litem, attorneys ad litem, and guardians. How might this new law affect mediations in the appellate context?

Chapter 37 has two key features. First, it requires a court to establish and maintain a list of all persons registered with the court to serve as a mediator. The list must be posted at the courthouse and on the court’s website. The statute requires posting to take place annually.

Second, the statute establishes a process by which a mediator is to be appointed if the parties cannot agree on one themselves. The court must use a rotation system starting with the first mediator on the list. Once appointed on a case, the mediator goes to the bottom of the list. On finding good cause, however, a court may appoint someone off-list or out of order when the case is complex and the proposed appointee (1) possesses relevant specialized education, training, certification, skill, language proficiency, or knowledge of the case’s subject matter; (2) has relevant prior involvement with the parties or the case; or (3) is in a relevant geographic location.

The statute raises several questions, and the answers are not all that clear. Read on for some examples.
Continue Reading

Posted in Announcements, Blogs & Blogging, Technology

Continuing to Evolve

D. Todd Smith

4203965136_285096c091_oReaders may have noticed some changes around here. Allow me to tie them together with a brief explanation.

New Design

More and more users are accessing the internet through smartphones or tablets—a trend that is sure to continue. My friends at LexBlog have thus rebuilt the site to be mobile-friendly. I am very pleased with the simple yet stylish new look and how it renders on both desktop and mobile devices.

New Contributors

Since launching this venture in January 2007, I have transitioned from solo appellate specialist to leader of a four-lawyer appellate boutique. I am privileged to work with some really smart, insightful people. It only seems right to showcase them here.

New Strategy

Running this site could be a full-time job if I could figure out a tasteful way to monetize it. Failing that, I’ll keep practicing law. But the ebb and flow of law practice creates challenges when it comes to regularly posting good content. With other contributors on board, readers can expect to see something new each week.

These changes are significant but positive. Others are on the horizon, if I can implement them successfully. To keep up with the latest, subscribe by RSS or email, or follow us on Twitter at @TXAppellateLaw.

Image courtesy of Flickr by raneko.

Posted in Interlocutory Appeals, Litigation Support, Motions, Procedure

Certificates of Merit: Don’t Let Your Lawsuit End Before It Begins

Maitreya Tomlinson

9607147409_82d5f52659_oClients have called upon me with increasing frequency regarding certificate of merit issues. While somewhat innocuous, I have found that real danger lurks behind the certificate of merit requirements contained in Chapter 150 of the Texas Civil Practice and Remedies Code. Noncompliance, for example, may lead to dismissal with prejudice. Because of the potential harm and the frequency of interlocutory appeals concerning Chapter 150 issues, it makes sense to consult with an appellate professional with experience in these matters before filing a certificate.

In 2003, the Legislature enacted Chapter 150 as a threshold requirement to demonstrate merit in suits against professionals like engineers and architects. The Legislature made some notable changes to the statute in 2005 and 2009. Although the Legislature has diligently refined Chapter 150, it has never established the standard for a trial court to employ when deciding to dismiss the case with or without prejudice. And, appellate courts have yet to help guide trial courts in making these decisions.

Nonetheless, between the statute’s relatively frequent revisions, defending parties’ willingness to challenge a certificate’s adequacy, and the built-in interlocutory appeal of grants or denials of motions to dismiss, Chapter 150 jurisprudence is ever evolving. The law’s developing nature has also spawned some unresolved inconsistencies between different intermediate appellate courts that could trip up unwary filers.

In my experience, filers could avoid most pitfalls by making simple modifications to their certificates of merit before filing. Further, I believe involving appellate professionals early in the process can also provide the client with a jump on what often leads to defending against motions to dismiss and participating in interlocutory appeals. It also helps prevent leaving the suit’s fate in the trial court’s relatively unfettered hands to decide whether the court should dismiss your otherwise meritorious suit with prejudice.

Image courtesy of Flickr by Joe Haupt.

Posted in In-House Focus

In-House Focus: Steer Clear of Career-Limiting Moves

Laura P. Haley

16323987936_f7aaf16f2a_oOne bright spring day in 2007, I took my former client out to lunch to pitch my new firm. By the end of lunch, my client hired me as his new in-house litigator. I had never considered a corporate counsel job before and had no idea what to expect. This post, and those I’ll write over the next few weeks, will discuss what I learned, both from an inside and outside counsel perspective.

Winning Your Case While Avoiding a CLM

Litigators can be odd members of in-house legal teams, particularly if they come straight out of a litigation-intensive firm. My former firm was probably typical for a litigation boutique: a small collection of very passionate, competitive law nerds. So my entry into the quiet, corporate legal structure presented me with frequent opportunities for career-limiting moves, affectionately known as CLMs.

One of my early CLMs was shushing the CEO. At the time, we were on a conference call with our insurers, discussing litigation against a group of plaintiffs with a $100 million damage model. Within two months of the call, we tried the case and zeroed out the plaintiffs. While it was a huge legal victory, I learned it was equally important not to give the CEO “the hand.” Balancing passionate representation and patience with corporate decision-makers is critical for in-house litigators.


Continue Reading

Posted in Technology, Texas Supreme Court

Arbitration in Attorney Fee Agreements After Royston v. Lopez

14417293308_b8b9236397_oI had the pleasure of briefing and presenting argument to the Texas Supreme Court in Royston, Rayzor, Vickery & Williams, LLP v. Lopez (Nos. 13–1026 and 14–0109, opinion available here), a case dealing with the enforceability of arbitration clauses between attorneys and clients. Earlier this week, I participated in a webcast about the case titled “Engagement Letters/Arbitration & Beyond: Aftermath of Royston v. Lopez,” which was broadcast through TexasBarCLE.

The Texas Supreme Court’s decision reaffirmed the general principle that arbitration clauses between attorneys and clients are not per se unenforceable, but it also clarified the burden of proof and the standard for unconscionability in proceedings to compel a client to arbitration. The primary holdings were: (1) the attorney-client relationship does not alter the burden of a party opposing arbitration to present evidence of a valid defense to arbitration; (2) a limited scope arbitration clause is not substantively unconscionable merely because certain claims must be arbitrated, while others can be litigated in court; and (3) there is no substantive requirement for a lawyer to explain, orally or in writing, an arbitration clause to the client in order for the clause to be enforceable. Because there are no disciplinary rules that specifically address an obligation to explain an arbitration clause to the client, in her concurrence, Justice Guzman appeared to implore the bar to study the issue and develop rules to govern these types of agreements.

In Ethics Opinion 586, the Texas Professional Ethics Committee recommended that attorneys make certain disclosures to clients under certain circumstances. For example, where the client is sophisticated, disclosures may not be necessary. Where the client is unsophisticated, the Committee recommended discussing the benefits and disadvantages of arbitration with the client. Practically speaking, arbitration clauses are found in nearly every consumer contract, and it is hard to imagine a client that has no experience with them. And in fact, arbitration could benefit an unsophisticated client who decides to proceed pro se, given the relaxed procedural and evidentiary rules that apply in arbitration and the limited discovery to which the client would have to respond. Even so, the safest course of action for attorneys considering including an arbitration clause in an engagement letter is to consult this advisory opinion and determine whether to make disclosures, at least until the State Bar takes Justice Guzman’s suggestion and adopts rules governing the use of arbitration clauses. 

Image courtesy of Flickr by


Posted in Litigation Support, Procedure, Trial Courts

Texas MDLs and Appellate Lawyers


Last week, I spoke at TexasBarCLE’s Advanced Civil Appellate Practice Course about transfer proceedings before the Texas Judicial Panel on Multidistrict Litigation. For anyone interested, my presentation slides appear at the end of this post.

MDLs may not seem all that relevant to appellate practice at first blush, but it is important for appellate lawyers to understand the transfer process. When complex litigation arises involving multiple parties, there is always a possibility of multiple lawsuits being filed.  An appellate lawyer should be prepared to advise clients and their trial lawyers about the availability of an MDL because the strategy for filing or defending against a transfer motion must be implemented from the outset of the case. MDL transfer proceedings are particularly suited for appellate lawyers because the page limits (yes, page limits, not word count limits) are short, the cases tend to be complex, and the Panel on Multidistrict Litigation is comprised of appellate justices and administrative judges. The skills required to prepare a succinct but persuasive appellate brief apply well in the MDL setting.

Image courtesy of Flickr by Norman B. Leventhal Map Center.