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.


Continue Reading

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

Posted in Appellate Practice, Litigation Support

The Value of Second Opinions

D. Todd Smith

5688645738_6eae5c1586_oRecently, Patrick Lamb of In Search of Perfect Client Service asked how often in-house counsel seek a second opinion about strategy. (Rarely, it seems.) Drawing on medical statistics, he noted that 50% of Americans do not get second opinions for important medical diagnoses, but among those who do, the second opinion leads to changes in the diagnosis or treatment 30% of the time.

As Patrick said:

Fresh eyes are often the best eyes.  People trying to solve a problem often lock-in on a strategy and play favorites with it. Fresh eyes can provide needed perspective.

A fresh set of eyes is one of the best attributes an appellate lawyer brings to a trial team. A new perspective can be beneficial when critiquing a strategy after the fact—as in Patrick’s example of a bellwether product-liability trial—but even more so while the matter is still going on. Appellate counsel with the ability to see two or three steps ahead can impact a case in the moment.

Would a second opinion from an appellate lawyer change a decisionmaker’s strategy in real time? There’s no way to know if it’s never sought.

Image courtesy of Flickr by Sean MacEntee.

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