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

Posted in Appellate Practice, Texas Supreme Court

Texas Supreme Court Jurisdiction, Part V: How Will Rule 56.1 Operate in the New Jurisdictional Landscape?

As lawyers, we love rules (and by “love” I mean memorize, apply, hopefully comply, argue, and at times strive to change them). We don’t, however, amend rules until they somehow fail or become obsolete. Granted, failure/obsolescence can be in the beholder’s eye and must present itself before we strive to change the rule.

In light of the Texas Supreme Court’s streamlined jurisdiction, the following question naturally arises (likely only for dedicated appellate professionals): will the Court continue to utilize Texas Rule of Appellate Procedure 56.1 similarly or will it have to revamp the rule? Perhaps because in some ways the Court’s new jurisdiction doesn’t appear to change the status quo, its new jurisdiction doesn’t seem to be generating much attention. So, it’s not surprising that rules promulgated under the old jurisdictional bases are not yet receiving noticeable attention. This includes Rule 56.1 titled, “Orders on Petition for Review.” Although not heavily cited in case law, the Texas Supreme Court employs the rule every time that it considers a petition for review. Consequently, it’s worth considering whether the jurisdictional change will affect the way the Court utilizes the rule or whether it chooses to amend the rule. Any meaningful discussion regarding Rule 56.1 (or any rule) must begin with the rule itself.

(Almost) Everything You Wanted to Know About Rule 56.1, But Were Afraid to Ask

Rule 56.1 contains four subsections that guide the Texas Supreme Court when it considers petitions for review. Rule 56.1(a) states that the Court has judicial discretion to grant review and lists the following six factors to consider when exercising its discretion: “(1) whether the justices of the court of appeals disagree on an important point of law; (2) whether there is a conflict between the courts of appeals on an important point of law; (3) whether a case involves the construction or validity of a statute; (4) whether a case involves constitutional issues; (5) whether the court of appeals appears to have committed an error of law of such importance to the state’s jurisprudence that it should be corrected; and (6) whether the court of appeals has decided an important question of state law that should be, but has not been, resolved by the Supreme Court.” Rule 56.1(b) empowers the Court to deny or dismiss a petition on file for thirty days—regardless if there was a response—with either the following two notations: (1) “Denied”; or (2) “Dismissed w.o.j.” (shorthand for “Dismissed for Want of Jurisdiction”). Rule 56.1(c) allows the Court to refuse a petition after a response is filed or requested, using the notation “Refused.” This notation serves as a proverbial rubber stamp and indicates that the court of appeals’ opinion supplies equivalent precedential value as a Texas Supreme Court opinion. Lastly, Rule 56.1(d) permits the Court to, without opinion, set aside its previous order granting review and dismiss, deny, or refuse review as if review were never granted. Continue Reading

Posted in Appellate Practice, Texas Supreme Court

Texas Supreme Court Jurisdiction, Part IV: Will Changes to Jurisdiction Necessitate a Change to Rule 53.2?

Sometimes the earth shifts along the ocean floor creating tsunamis that flood unsuspecting coastal areas. Sometimes the shifts amount to unnoticed ripples silently traveling alongside flowing waves. Like the quaking seabed, will the recent changes to the Texas Supreme Court’s jurisdiction lead to any amendments to the rules of appellate procedure? In Part II of this series, I predicted the jurisdictional change would force petitioners to cede valuable real estate in their argument sections to prove jurisdiction. I based this prognostication on Texas Rule of Appellate Procedure 53.2(e)’s prohibition on argument in a petition-for-review’s statement of jurisdiction.

At this point, you may be asking yourself what is Rule 53.2 or 53.2(e) and why might it need amending? Rule 53.2 concerns petitions for review (the initial filing to appeal reviewable orders or judgments). It prescribes certain headings and establishes rules regarding their respective content. In particular, Rule 53.2(e) requires a heading labeled, “Statement of jurisdiction.” It further mandates that “[t]he petition must state, without argument, the basis of the Court’s jurisdiction.”

New(ish) Jurisdiction and Possibly Amending Rule 53.2

So, does the rule require amending? Before the jurisdictional change, practitioners typically (utilizing the kitchen-sink or the more-the-merrier approach) identified multiple bases of jurisdiction in this section. The new, solitary importance-to-the-state’s jurisprudence standard, however, has eliminated this need. In fact, it may be enough to now simply state that the legal issues are important to the state’s jurisprudence. There are, as I will detail more below, reasons why petitioners might still need to present argument in their statements of jurisdiction. In turn, the need may necessitate at least removing Rule 53.2(e)’s “without argument” language.

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Posted in Appellate Practice

How Appellate Work Saved Me from Diabetes and Diabetes Made Me a Better Appellate Lawyer

Jeff Nobles

I was diagnosed with type 1 diabetes 44 years ago, on September 24, 1973, and have practiced appellate law full-time since 1989. Appellate law has played a major part in helping me live a longer and healthy life. In 1973, the life expectancy for a teenager diagnosed with diabetes was 50. I turned 59 last month. Here are some of the ways my career has extended my life and diabetes has made me a better appellate lawyer.

Health Insurance

I joined a small Houston firm in 1987 and worked as a trial lawyer for a couple of years. In Texas in 1987, health insurance coverage was not a given for a person with diabetes, and the group insurer for my small firm would not cover me or my wife, Angie. This was a problem that led me to a new job in 1989 with a larger employer, the State of Texas, where I began work as a staff attorney at the First Court of Appeals, just before our first daughter, Audrey, was born.

Health insurance has always been a key factor in my job choices. I’ve mainly worked in law firms that had decent health insurance coverage. Without good health insurance, the annual costs of my diabetes—quarterly endocrinologist visits; insulin; insulin pumps and supplies; test strips and meters; continuous glucose monitors and supplies—would be more than $30,000 annually. Decent health insurance coverage has maintained my health and the ability to work long hours on complicated appeals.

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