Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : Smith Law Group, P.C. : Appeals, Sanctions, Summary Judgment : Austin, Texas

Here is the second video from the "ethics intervention" presentation at the Advanced Appellate Seminar recently put on by the State Bar Appellate Section and TexasBarCLE,  Houston appellate lawyer David Holman once again demonstrates some things counsel should not do, this time in the context of preparing and filing a motion for rehearing in the court of appeals.  Russell Hollenbeck plays Holman's client.

The quotes from real-life motions for rehearing are priceless.  They bring back memories of the famous motion for rehearing in which a lawyer labeled the Texas Supreme Court one of the "Four Horsemen of the Apocalypse" and called the justices "nine nutty professors."  The lesson?  Writing a "catharsis motion" might make you feel better, but filing one is usually a mistake.

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I recently promised a little humor, so here you go.

In this video, produced for the Advanced Appellate Seminar put on last week by the State Bar Appellate Section and TexasBarCLE, Houston appellate lawyer David Holman demonstrates a number of things counsel should not do during oral argument.  The video was part of an "ethics intervention" in which Holman's colleagues Russell Hollenbeck and Daryl Moore expressed concern about Holman's "ethical lapses."  Richard Hogan appears as Holman's opposing counsel in the video, which also features real-life Justices Martha Hill Jamison, Terry Jennings, and Sharon McCally.

Having this kind of material in a statewide CLE program shows why practicing appellate law in Texas is so special.

Within the next few days, I'll post a similar video addressing motions for rehearing.

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For some Friday afternoon fun, watch this video, courtesy of the Sophistic Miltonian Serbonian Blog:

If you don't know, Tom Goldstein was a small-firm lawyer before he joined Akin Gump.

(Yes, this was my first attempt at imbedding video on this blog.)

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Roger Hughes tipped me off to this opinion from the Thirteenth Court of Appeals, which borrows a Spanish expression I had the privilege of learning directly from the source cited, former Texas Supreme Court Justice Raul Gonzalez.  Roughly translated, ya basta means "enough is enough."

As Roger observed:

The 13th Ct App (notoriously lenient in putting up with the difficult appellant) finally sanctions someone and their lawyer for a frivolous mandamus.  After finding counsel's citation to authority so bad as to be "bad faith", the court states:

Finally, we order Mr. Leas to cease and desist from filing frivolous motions and pleadings in this Court and the trial court.⁽⁸²⁾  Ya Basta!⁽⁸³⁾

Sanctions with salsa.  Only in Texas.

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Counsel:  May it please the Court, counsel.  I am just thrilled as I can be to be here.  I've been doing this for 21 years, and I'm finally in front of the Supreme Court.

Justice Medina [at conclusion of argument]:  Was it worth the 21-year wait?

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Over at Legalwriting.net, Wayne Schiess has posted his observation that many lawyers fail to use an "apostrophe + s" to create the possessive of a word already ending in "s."  Professor Schiess notes a connection between this tendency and newspapers' use of this form.  (Yes, it's OK to use only an apostrophe when the word is already plural.)

I admit that I sometimes backslide when writing "court of appeals" as a possessive.  "The court of appeals's ___" often seems awkward and too attention-grabbing.  Other than to rewrite the sentence to avoid the possessive (which tends to create passive voice problems), I haven't come up with a satisfactory solution.  Fortunately, Professor Schiess seems to have given those struggling with this issue a free pass.

The notion that newspapers can influence legal writing reminds me of Roger Hughes's piece in The Appellate Advocate called Legalese in the Age of IM (Instant Messaging).  If newspapers hold that kind of sway, how long will it bebefore we start seeing IM slang in legal briefs?  If Roger's tongue-in-cheek prediction holds true, it's only a matter of time.

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Blawgletter can't help but wonder whether Gilligan—he of Gilligan's Island (1964-67) fame—could have earned homestead protection for S.S. Minnow, the tiny ship that a storm wrecked 40-plus years ago on a desert island nowhere near Texas.  Unlike the Norris's vessel, The Minnow lacked electricity, running water, and other amenities of modern life.  Plus nobody lived in it; Gilligan, the Professor, et al., dwelled in grass huts.  But S.S. Minnow never got off of dry land (except perhaps for that one episode when the castaways tried to patch and sail it).

Barry "despairs at the court's homestead decision," not because of the outcome, but because neither the majority nor the dissent identified the "craft-and-domicile" by name.  After digging around on PACER, Barry determined that the boat was a 1975 Chris Craft Roamer, which the Norrises had christened Cricket.

Somewhere, I can hear the Skipper shouting, "Gill-i-gan!!!"

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Pasted below is a nugget collected by Pamela Stanton Baron, a leading Texas Supreme Court watcher/practitioner who either attends or listens to all of the Court's oral arguments.  More "outtakes" will follow periodically.  Thanks to Pam for allowing me to post them here.

From Reliance National Indemnity Co. v. Advanced Temporaries, Inc., argued on October 18, 2006:

Counsel:  And I want to commend the Court on City of Keller, which I think is a phenomenal opinion.  I think its the kind of comprehensive contribution to our jurisprudence that's uniquely within the province of this Court versus the Legislature.

Justice ONeill:  Oh, come on.

[laughter]

Justice ONeill:  He's going to be insufferable [presumably referring to Justice Brister, Keller's author].

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