Clients frequently ask appellate lawyers, “How long until the court makes a decision?” It’s a question we all struggle with because the number of variables is too great to allow anything but a semi-educated guess. The period is measured in months, if not years.
The fiscal year for Texas appellate courts ends on August 31. The courts usually release a large number of opinions in August to avoid having those dispositions carried over to a new budgetary and measurement cycle. So, if you have a case you’ve been wondering about, now is the time to keep your eye on the orders lists or register for CaseMail (which everyone should already be doing under e-filing rules). As part of the ongoing transition to TAMES, several courts have implemented an e-mail notification system that notifies the user the day of the event, a substantial improvement over CaseMail’s next-day notice.
My oldest case was docketed in 2009 and submitted on briefs in September 2010. You read that right: We’re coming up on the third anniversary of the case being fully briefed and ripe for decision without oral argument. Some of the delay can be attributed to court turnover—we are now on our third assigned panel—and some may have resulted from the case being one of first impression, but this sort of time lag is difficult to explain to the client. The only educated guess I have left is that the panel is split, and it is taking time for the majority and dissenting opinions to address each other. Meanwhile, I’ll be keeping an eye out this month. If we don’t get a decision before September 1, I might just file a motion for oral argument.
Texas lost another legal giant today with the death of retired Texas Supreme Court Justice Jack Hightower. The Court’s official announcement, courtesy of Osler McCarthy, appears here.
I was a brand-new law clerk—a position then known as “briefing attorney”—during Justice Hightower’s last few months on the bench. SCOTX is one of the few high courts that allows law clerks to attend internal court conferences, and I remember Justice Hightower’s views being widely respected around the conference table. He did not speak up very often, but when he did, everyone listened.
Justice Hightower lived an incredible life of service, and he encouraged others to do the same. One of the lawyers who worked in his chambers that final year, Jeff Brown, has gone on to become an appellate judge after spending several years on the trial bench. When Justice Hightower retired in early 1996, his replacement was Greg Abbott, who has served as Texas Attorney General since 2002 is and now a leading gubernatorial candidate.
We would all do well to follow Justice Hightower’s example. May he rest in peace.
Noam Scheiber’s recent New Republic article, “The Last Days of Big Law,” has been buzzing over my social media stream for the past week or so. It’s a pretty sobering read, although it hasn’t gone uncriticized.
For example, in “Don’t Bury Big Law Just Yet,” The American Lawyer‘s Robin Sparkman wrote that “[r]umors of [the giant law firms'] demise are greatly exaggerated.” Slate‘s Mark Obbie previously reached the same conclusion in “The Fascinating Vampire Squids of Law,” where he riffed off the New Republic cover’s Breaking Bad theme. (7/30/13 Update: Scheiber responded to his critics here.)
I have always been thankful for the opportunities big-firm life provided early in my legal career, but Scheiber’s article—prophetic or not—made me glad to have departed that life when I did. That was seven years ago this month, around the same time, according to Scheiber, that economic realities began changing the way clients view legal services in general and the Big Law model in particular.
For years, I have believed that resistance to increasing Big Law rates and greater relative demand for specialized (non-commoditized) legal services would benefit boutique firms and solos catering to a defined niche. In my practice area, for example, the market no longer seems to support training young associates to become appellate specialists. Sophisticated clients don’t want to pay big-firm rates for partner-level work, much less for the learning curve younger lawyers must go through to become competent appellate practitioners. In recent years, I’ve watched contemporaries leave big firms to start their own shops, either because their firms couldn’t support them any longer or because they saw the same opportunity I did.
These trends leave me wondering: Who at Big Law is going to oversee significant appellate matters when the vanguard retires or otherwise moves on? Firms often recruit former appellate judges to join their ranks after leaving the bench, and that—like a mid-season Major League Baseball trade—may be a reasonable stop-gap. But without teams of appellate experts housed at big firms on a long-term basis, in-house counsel’s continued reliance on the “CYA factor” when deciding who will handle their company’s high-level appellate work would no longer seem viable.
Will the continuing evolution of Big Law, in whatever form, benefit specialized boutique firms? Big Law’s life story is still being written, but I still say yes.
I was saddened to learn that Ralph Brock—the first chair of the State Bar Appellate Section and one of my predecessors as editor of The Appellate Advocate—passed away on July 14, 2013.
Ralph was extremely personable and was in many ways ahead of his time. In recent years, he served as chair of the State Bar Computer and Technology Section (whose announcement appears here) and on the State Bar Web Services Committee. Future lawyers will benefit from his work with these groups. Most notably, Ralph was instrumental in making commonly used statutes and rules available to Computer and Technology Section members at no cost via the Section’s iPad app.
Rest in peace, Ralph. You will be missed.
Update: A 2005 interview Ralph gave as part of the Appellate Section’s history project is available here.
In November 2011, I posted about whether attorney fees must be superseded to stay execution of a judgment pending appeal. Today, in In re Nalle Plastics Family Limited Partnership (No. 11-0903), the Texas Supreme Court resolved a split among the intermediate courts of appeals and answered the question, “No.”
Let me set the stage a little. With some exceptions, filing a notice of appeal does not prevent a judgment from being enforced. Before 2003, an appellant seeking to supersede a money judgment had to post security in “at least the amount of the judgment, interest for the estimated duration of the appeal, and costs.” House Bill 4, the infamous tort-reform package, altered the security required by substituting “the amount of compensatory damages awarded in the judgment” for “the amount of the judgment.” So, for a money judgment, the appellant must now post security equaling the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs. Tex. Civ. Prac. & Rem. Code § 52.006; TRAP 24.2(a)(1).
Under the old rule, “the amount of the judgment” included not only actual or compensatory damages, but also any punitive or additional damages authorized by law. Commentators generally agreed that HB4 removed these sorts of “noncompensatory” damages from what must be secured, making it easier for defendants to suspend money judgments on appeal as the Legislature intended. But questions arose about whether a judgment debtor needed to supersede attorney fees and other matters making up “the amount of the judgment,” yet arguably outside HB4’s “compensatory damages” standard. A split developed among the intermediate courts on whether attorney fees must be included in the amount of security a judgment debtor must post to prevent execution on the judgment pending appeal. Continue Reading
The following are taken from the Texas Supreme Court’s website. Happy 100th birthday, Chief Justice Pope!
Yesterday afternoon, I gave a one-hour presentation to a group of 11 intermediate appellate justices on the topic of “Principled Appellate Decisions.” The presentation was part of the Texas College for Judicial Studies, a program providing educational opportunities to judges who desire to improve their adjudication skills and acquire specific training in their jurisdictional specialization. My involvement resulted from efforts to facilitate a relationship between the College and the State Bar Appellate Section.
The 11 attendees represented nearly half of the 14 Texas intermediate appellate courts. As I joked with the group, this was a little like an en banc argument on steroids. Fortunately, the attendees chimed in with questions and actively engaged in the discussion. I may have been there to help educate them, but I came away better educated myself.
The slides from my presentation appear below.
The “sound bites” come from a survey of appellate specialists reported in Stacy R. Obenhaus, Ten Things The Texas Courts of Appeals Could Do Better (According to the Appellate Bar), University of Texas 22nd Annual Conference on State and Federal Appeals (2012).
At its March 21, 2013 luncheon meeting, the Austin Bar Civil Appellate Law Section is sponsoring a CLE panel entitled “Fundamentals of Patent Litigation and Appeals.” The panel will consist of moderator Bill Schuurman, Alan Albright, Amber Rovner, and Sheila Kadura. The event will take place at Green Pastures, 811 West Live Oak Street. Registration begins at 11:45, and the program will start at noon.
This topic has been on the Section leadership’s radar for quite some time. I’m glad it’s finally coming together. To ensure your spot, RSVP today to Blake Hawthorne at blake.hawthorne[at]txcourts.gov.
The Texas Supreme Court has issued an order correcting some of its recent amendments to the Texas Rules of Appellate Procedure. The most notable correction involves the certificate-of-compliance requirement regarding the new word count limits previously discussed here, here, and here. By adding the language underlined below, the Court has made clear that no certificate of compliance need be included when e-filing letters and other documents not expressly subject to word counts, such as motions for extensions of time:
(3) Certificate of Compliance. A computer-generated document that is subject to a word limit under this rule must include a certificate by counsel or an unrepresented party stating the number of words in the document. The person certifying may rely on the word count of the computer program used to prepare the document.
The Court also made clear that word counts apply to permissive appeals under TRAP 28.3 and removed a stray page-count reference in TRAP 52.9.
At this point, the only documents subject to word count limits are those listed in TRAP 9.4(i)(2) and TRAP 28.3(g). Therefore, these amendments confirm that a certificate of compliance need only be included when filing one of those documents.
I recall discovering my first unpublished case as a law student when interning for an intermediate appellate court justice. Strangely, a legend accompanied the opinion disclaiming precedential value, which seemed odd considering that the opinion was written and accessible through my legal database. Around the same time, I encountered my first memorandum opinion with its own legend directing me to Texas Rule of Appellate Procedure 47.2 for designation and signing of opinions.
Until that point, I had assumed that all database accessible cases had precedential value. If the legend were not enough, a quick reference to TRAP 47 dispelled that notion. Now, I find that some experienced practitioners still feel that all unpublished civil opinions, including memorandum opinions, lack precedential value. This feeling is not unfounded because an older iteration of TRAP 47 maintained that unpublished opinions were not citable and lacked any precedential value.
Under the current rule, however, there is no such thing as an “unpublished” civil case and all civil opinions have precedential value. After January 1, 2003, a rule change mandated that Texas intermediate appellate courts must designate their opinions as either “opinions” or “memorandum opinions.” I think practitioners’ confusion lies in that memorandum opinions resemble “unpublished” opinions because they are accessible only through legal databases or the courts’ websites. After 2003, but before a 2008 rule amendment, the confusion was reinforced by some judicial precedent that equated the new memorandum opinions with the older unpublished opinions when it came to precedential value. Albeit in the equivalent of fine print, the 2008 amendment tried to remedy the confusion by explicitly stating in the comments section that “[a]ll opinions and memorandum opinions in civil cases issued after the 2003 amendment have precedential value.”
While it is true that pre-2003 unpublished opinions still lack precedential value under current TRAP 47.7(b), the rule now allows that those opinions may be cited with the notation “(not designated for publication).” This means that practitioners may (and should) cite these unpublished cases as persuasive authority.
So, as a quick rule of thumb, any intermediate appellate court decision issued after January 1, 2003 possesses precedential force. And, any opinion designated “do not publish” issued before January 1, 2003 does not, but still may be cited as persuasive authority if it is accompanied by the notation “(not designated for publication).”
Publisher’s Note: The preceding is Maitreya Tomlinson‘s first post on this blog. Please join me in welcoming Maitreya to the blogosphere!