Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

Following up on this post, I finished reading John Grisham's The Appeal this past weekend.  As some reviews have noted, the story is more about the politics of judicial elections than the actual appellate process, which is barely mentioned at all.  I laughed out loud, though, when I read the following passage:

In Atlanta, Jared Kurtin passed the file to the firms appellate unit, the eggheads, as they were known, brilliant legal scholars who functioned poorly in normal circles and were best kept in the library.  Two partners, four associates, and four paralegals were already hard at work on the appeal when the massive transcript arrived and they had their first look at every word that was recorded at trial.  They would dissect it and find dozens of reasons for a reversal [at 103].

This reminded me of my big firm days, although no one referred to our group as "eggheads" (more like "nerds," I think).  We also didn't staff even the largest matters with two partners, four associates, and four paralegals.  At current rates, that kind of coverage would ring up about $3,000 an hour.

I didn't find the book to be as much a "bully pulpit for reform" as some, though the Author's Note does speak out in pointed opposition to judicial elections.  It's classic Grisham—David versus Goliath with political undertones, but withGoliath reversing his fortune 5 votes to 4.  The timing is interesting, but I wouldn't take it for anything more than an easy, fairly entertaining read.

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If you haven't already heard, John Grisham has a new legal thriller out.  It's called The Appeal.  Here's an excerpt from Charles Taylor's review at Bloomberg.com:

[The defendant's] next step, of course, is to appeal the verdict.  Knowing that it will take several years for the case to reach the state Supreme Court, the company decides to buy a seat.  Judges are elected in Mississippi, so they target a victim—a female justice who can be made to sound like a liberal harridan—and groom a decent, conservative young lawyer to run against her.  Then the smear campaign begins.

Sounds a little like an appellate version of The Runaway Jury, with some commentary on judicial elections thrown in.  According to USA Today's review:

More than a novel, The Appeal is an exposé of how highly organized special-interest groups, loaded with cash, can manipulate the judicial system.  It's Grisham's bully pulpit for reform.  "There's a lot of truth in this story," Grisham writes in an author's note.  "As long as private money is allowed in judicial elections we will see competing interests fight for seats on the bench."

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Per How Appealing, an article entitled The Irony of Judicial Elections (abstract with link for download) will appear in the March 2008 issue of the Columbia Law Review.  The article's abstract reads as follows:

Judicial elections in the United States have undergone a dramatic transformation.  For more than a century, these state and local elections were relatively dignified, low-key affairs.  Campaigning was minimal; incumbents almost always won; few people voted or cared.  Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm.  In the new era, as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This Article takes the new era as an opportunity to advance our understanding of elective versus nonelective judiciaries.  In revisiting this classic debate, the Article aims to make three main contributions.  First, it offers an analytic taxonomy of the arguments for and against electing judges that seeks to distinguish the central normative concerns from the more contingent, empirical ones.  Second, applying this taxonomy, the Article shows how both the costs and the benefits of elective judiciaries have been enhanced by recent developments, leaving the two sides of the debate further apart than ever.

Third, the Article explores several deep ironies that emerge from this cleavage.  Underlying these ironies is a common insight:  As judicial elections achieve greater legitimacy as elections, it will tend to undermine the judiciary's distinctive role and our broader democratic processes.  There is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary, the Article posits, that can help recast the controversy over the new era.

Sounds like something members of the Legislature ought to read before taking up judicial election reform again in 2009.

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According to the Tex Parte Blog, Tenth Court of Appeals Justice Bill Vance (pictured) has announced that he will not seek a fourth term in 2008.  Justice Vance apparently dismissed any notion that his ongoing conflict with with Chief Justice Tom Gray played any part in his decision.

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Within the past couple of weeks, I have been contacted by two different lawyers about their clients' respective appeals, both of which appear to be on a collision course with the Texas Supreme Court.  Sounds promising, right?  Not so fast.

Rather than calling to discuss hiring me to handle their matters, both lawyers wanted me to recommend someone "politically connected" (i.e., someone with a firm that is a big financial contributor to the individual justices' electoral campaigns) to take over the proceedings.

I don't blame these folks for calling.  They are merely doing what they think is in their clients' best interest.  But what does this say about lawyers' confidence—not to mention the public's—in our elected judiciary?  It's more important to hire someone who has given large sums to political campaigns than someone qualified to do the job (and, in my case, as a sole practitioner with much lower overhead than the "politically connected" firms, do it at a considerably more favorable rate).

Chief Justice Jefferson has tried to pick up the mantle of judicial selection reform and carry on the fight started by his immediate predecessors.  The legislature keeps saying no.  Don't give up, Chief.  Don't give up.

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According to this week's State Bar Friday Update, Representative Myra Crownover has filed two companion bills (House Bill 1908 and House Joint Resolution 78) to the Senate judicial selection legislation mentioned here.  Both have been referred to the House Judiciary Committee, but have not been set for hearing.

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The State Bar's Friday Update reports that Senator Robert Duncan has filed two judicial selection bills.  The first, Senate Bill 806, allows for appointment of certain judicial offices and nonpartisan retention elections.  The second, Senate Joint Resolution 32, proposes a related constitutional amendment.

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