Posted in Appellate Practice, Courts of Appeals, News & Politics

Ch- Ch- Ch- Ch- Changes

D. Todd Smith

I don’t talk politics here, but it’s hard to ignore what happened to the intermediate Texas appellate courts last night. Statewide, dozens of incumbent justices—many of whom are great at their jobs and deserved to keep them—were swept out of office, some by challengers who are either completely unknown or who have little to no experience representing clients before appellate courts.

The new justices will have to learn fast. “New judges school” and those left behind will have their hands full educating them on the finer points of their new jobs. I think we can expect delays in almost every aspect of the courts’ work and, unfortunately, panels to be divided along party lines. The Texas Supreme Court—which remains all-Republican and will not change composition come January 1—will feel the effects too.

In this new reality, I think the role of experienced appellate practitioners will be more significant than ever. We are most effective when we assist courts in understanding the case, the law, and how to reach a reasoned outcome faithful to both. Though change is hard, I plan to continue doing just that.

Image courtesy of Flickr by Piano Piano!

Posted in Appellate Practice, News & Politics, Third Court of Appeals

Toth Appointed to Third Court of Appeals

D. Todd Smith

Justice Bob Pemberton has departed the Third Court of Appeals before his term was set to expire on December 31, 2018. Governor Abbott wasted no time appointing Mike Toth, the Republican candidate for Justice Pemberton’s open seat, to fill the vacancy. Justice Toth must defeat the Democratic candidate, Travis County District Judge Gisela Triana, to keep his new job.

Justice Pemberton served the Third Court and the people of Texas faithfully and honorably. His experience on the Court will be missed. I wish him well in the next phase of his career.

This deep into election season, it’s hard to imagine Justice Toth will learn much about being an appellate justice before finding out whether he’ll remain one. When campaigning, he’ll have the nominal advantage of being able to say he’s the incumbent. Open-seat races are generally close, though, so it will be interesting to see how he fares against Judge Triana on November 6.

Posted in Appellate Practice

The Appellate Road Warrior: Essential Skills and Best Practices

D. Todd Smith

This is the fifth and final installment of my series on mobile lawyering for appellate practitioners. To easily access the entire series, click here.

By this point, you should have the equipment and the software to get your work done from the road. This post discusses some special considerations for working efficiently and securely.

Troubleshooting Tech Problems

Practicing from the road requires a certain amount of independence. Working outside the office—away from coworkers who can help you troubleshoot technology problems—requires a greater degree of self-sufficiency and resourcefulness.

Most troubleshooting involves searching for well-known solutions to common problems. As funny as it sounds, this is best accomplished via Google. The better you are at solving common problems by searching Google, the easier it will be to work outside the office using only your tablet or smartphone.

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Posted in Appellate Practice, Technology

The Appellate Road Warrior: Apps for Practicing From the Road

D. Todd Smith

This is the fourth installment in my series on practicing appellate law from the road. The others are available here.

This post addresses methods for continuing your daily work without access to your office or laptop computer. Highlighted below are various apps that will help keep things moving.

Microsoft Office

As mentioned earlier in the series, an Office365 annual subscription gets you free access to apps from Microsoft that match up with the same programs on your computer, specifically Word, Excel, PowerPoint, and OneNote. While not as fully featured as their computer-based counterparts, they provide all of the functionality most lawyers need to work effectively. Word now has a robust Track Changes mode that allows you to see and make redline edits. You can create, review, and edit documents on your phone or tablet. Excel allows you to create and edit spreadsheets, use formulas, and filter and sort. You can create and edit presentations with PowerPoint. And OneNote (discussed below) is an effective notetaking app.

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Posted in Appellate Practice, Technology

The Appellate Road Warrior: Preparing for Mobile Lawyering (Continued)

D. Todd Smith

This is the third installment in my series on practicing appellate law from the road. To see the others, click here.

You’ve chosen your hardware (laptop, tablet, or smartphone) and the basic software you’ll need to be productive. Before going on the road, you must also consider how your information will be organized and accessed to enhance your productivity while traveling.

Digital Files

The appellate world has largely become digital. This coincides with the trend toward taking law practices paperless. Maintaining client files in digital form is quickly becoming the industry standard. With so many documents being created on and received through our computers, that standard should not be difficult for appellate practitioners to meet.

Maintaining files in digital form means converting analog documents and storing them in the same location as native digital documents. The key is to make digitization of all file materials part of your office workflow. If your research notes or other relevant file materials are accessible when needed, you won’t miss a beat when working from the road. If they aren’t, then things won’t go as smoothly.

Most firms have some type of scanning system to digitize analog documents. For a very reliable and inexpensive alternative, I recommend the Fujitsu ScanSnap iX500, a dedicated scanner that sits neatly on your desk. It works with Mac or PC systems and will scan 50 pages at a time, whether single or duplex. At about $430, this is the scanner to buy if you’re the one choosing your equipment. Continue Reading

Posted in Appellate Practice, Technology

The Appellate Road Warrior: Preparing for Mobile Lawyering

D. Todd Smith

This is the second post in my series on practicing appellate law from the road. The introductory post is available here.

Effective mobile lawyering requires some up-front preparation. The hardware you’ll take with you is a threshold consideration.

Basic Hardware

A laptop, tablet, and smartphone are the key tools for practicing remotely. The hardware needed to practice from the road depends to some degree on the depth of the work you’ll be doing.

If you intend to prepare a full-on brief, a laptop with all of your standard software will probably be necessary. Laptops are so powerful these days and external monitors are so common that there’s really no reason to have a desktop computer in the office anymore. Hauling your everyday computer around with you will increase your ease of use and comfort level. But some may not want to make that commitment.

Tablets are more convenient to carry around than laptops. They are suitable for reading emails and PDFs, internet research, and relatively light document drafting or revision. The iOS and Android versions of the most popular word processing programs continue to improve, however, so more substantive legal work may be accomplished on a tablet than ever before. Tablets are the sweet spot for appellate road warriors who want to do some work but don’t want to drag their laptops with them while traveling.

A smartphone is obviously the most convenient device to take with you and requires little advance preparation to make productive. From the road, you can easily monitor email, make and receive calls, surf the internet, and read certain documents. But unless your eyes are sharp and you are an excellent thumb typist, a smartphone is not the best device on which to do much substantive drafting or revision.

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Posted in Appellate Practice, Technology

Introduction to the Appellate Road Warrior

D. Todd Smith

Think about what Texas appellate practice was like a decade ago. Courts required paper filings, and filing fees were paid by check. Appellate records existed only in paper form. Briefs had to be completed in time for the right number of copies to be made and either hand-delivered or dropped in the mail to ensure timely filing and service. Making an after-hours post-office run to ensure the “mailbox rule” was satisfied was not unusual. Accomplishing work while traveling generally meant lugging around paper files and a laptop and relying on a slow and unreliable internet connection.

Fast forward to 2018. Our courts have gone digital in nearly all respects. A large, multi-volume appellate record is reduced to a searchable PDF file. eFileTexas.gov allows us to timely file and serve briefs until 11:59 p.m. on the due date. High-speed internet has become widespread, and the devices through which we access digital information have become increasingly sophisticated and powerful.

Except for the occasional oral argument or other court appearance, a modern-day appellate lawyer should be able to work productively from anywhere in the world. With help from one of my digital mentors, Ernie Svenson, my next few posts will overview some of the hardware, software, and best practices that allow appellate counsel to serve clients safely, securely, and efficiently from almost anywhere.

Image courtesy of Flickr by Kai Hendry.

Posted in Announcements, Appellate Practice, Texas Supreme Court

An Evening with the Supreme Court of Texas

D. Todd Smith

The Appellate Sections of the Austin Bar Association and the State Bar of Texas are once again co-sponsoring “An Evening with the Supreme Court of Texas.” This event—which has been held biennially since 2008—will take place on Thursday, March 1, 2018, from 6:00 to 8:00 p.m. at the InterContinental Stephen F. Austin Hotel here in Austin. One hour of CLE credit has been requested.

As in the past, the justices will participate in a panel discussion about practice before the Court and other relevant issues. A social hour will follow.

The event is free to all attendees, thanks to several sponsoring law firms— including Smith Haley Nobles. No RSVP is required.

Prior versions of this event were highly informative and well attended. I was privileged to serve as moderator in 2012, when I was both the Austin Bar Appellate Section Chair and a member of the State Bar Appellate Section Council. I would encourage all Texas lawyers to take advantage of this special opportunity to hear what the justices have to say and to visit with them on an informal basis.

Posted in Announcements

New Year, New Name

D. Todd Smith

In this inaugural post for 2018, I’d like to announce a significant change in my firm. As of January 1, 2018, Smith Law Group has become Smith Haley Nobles.

I started this firm in 2006 as a sole proprietorship. Solo life was great, if somewhat solitary. I enjoyed enough success the first couple of years that I had more work to do than time to do it. Growing the firm made sense, so I formed a professional corporation. And with that, in 2009, Smith Law Group was born.

We’ve experienced our share of change over the years. Lawyers and staff have come and gone, including a couple of partners who have gone on to hang their own shingles. I’m pleased to track their careers and see the success they are enjoying now.

But it’s not all about me.

If you don’t know my now-name partners, Laura Haley and Jeff Nobles are exceptional lawyers. Just ask their clients, opposing counsel, and the judges before whom they’ve appeared. They don’t work for me, they work with me. Each of us brings something different to the table. Together, we’re building something far greater than what any of us could create alone.

Posted in Appellate Practice

Sticky Fees

Jeff Nobles

If it seems to you that there are many more appeals of attorneys’ fees these days, you’re right. Appeals involving attorneys’ fees have risen steeply over the last seven years. There is something happening in this area of the law, and we need to be keeping up with it, because it is directly relevant to our clients and our practices.

The numbers

Between 2011 and 2017, there were at least 922 Texas appellate decisions involving challenges to awards or denials of attorneys’ fees—more than double the annual average between 2001 and 2010:


What’s more, the ratio of attorneys’ fee appeals, compared to damages appeals, rose from about 50% in 2001 to more than 80% after 2011: Continue Reading

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