The lead story on the 6 o’clock news featured Dallas County Judge Clay Jenkins, Dallas Mayor Mike Rawlings, and me.
Here is the video:
This afternoon, Texas Supreme Court Justice Don Willett and Austin lawyer Don Cruse spoke at a continuing legal education seminar. Among other things, they addressed amicus briefs filed in the Supreme Court.
The court requests a response to the petition for review in about 33% of cases. However, when an amicus brief has been filed prior to the time that the court decides whether to request a response, Mr. Cruse determined that the court requests a response about 85% of the time. While only 2% of cases have amicus briefs filed prior to the time that the court decides whether to request a response, it seems that those petitions are disproportionately successful in getting a response requested.
The court requests briefs on the merits (a/k/a full briefing) in about 20% of cases. However, when an amicus brief has been filed prior to the time that the court decides whether to request briefs on the merits, Mr. Cruse determined that the court requests briefs on the merits about 82% of the time. While only 7% of cases have amicus briefs filed prior to the time that the court decides whether to request briefs on the merits, it seems that those petitions are disproportionately successful in getting briefs on the merits requested.
Consistent with this data, Justice Willett indicated that he enjoys reading amicus briefs and that it is advisable for a petitioner to have supporting amicus briefs filed early in the proceeding (e.g., before the court has decided to whether to request a response or at least before the court has decided whether to request briefs on the merits).
The American Bar Association’s Judicial Division and Southern Methodist University’s Dedman School of Law will be hosting a seminar in Dallas, Texas from November 13-16, 2014. The seminar will be co-hosted by the ABA’s Council of Appellate Lawyers and the ABA’s Council of Appellate Staff Attorneys.
Among the many speakers will be U.S. Supreme Court Justice Antonin Scalia; Fifth Circuit Court of Appeals Chief Judge Carl Stewart; Fifth Circuit Court of Appeals Judges Catharina Haynes, Stephen Higginson, Leslie Southwick, and Jennifer Elrod; U.S. District Court Judges Xavier Rodriguez and Lee Rosenthal, Texas Supreme Court Chief Justice Nathan Hecht; retired Texas Supreme Court Chief Justice Wallace Jefferson; retired Texas Supreme Court Justice Scott Brister; Dallas Court of Appeals Justice Lana Myers; Fourteenth Court of Appeals Justice Brett Busby; Dallas Court of Appeals Staff Attorney Cliffie Wesson; Baylor University President Ken Starr; SMU Law Dean Jennifer Collins; SMU Law former Dean John Attanasio; University of California Irvine School of Law Dean Erwin Chemerinsky; Emory University School of Law Dean Robert Schapiro; SMU Associate Provost Linda Eads; SMU Law Professors Bryan Garner, Elizabeth Thornburg, Meghan Ryan, Chris Jenks, and William Dorsaneo; Pepperdine University School of Law Professor Gregory McNeal; New York University School of Law Professor Burt Neuborne; University of San Fransisco Professor Susan Freiwald; Brooklyn Law School Professor Susan Herman; Texas Commission on Judicial Conduct Executive Director Seana Willing; CBS News 48 Hours Correspondent Erin Moriatry; Dallas Mayor Mike Rawlings; and Home Depot General Counsel Teresa Roseborough.
The AJEI seminar sounds like an excellent opportunity for appellate court judges, appellate court staff attorneys, and appellate practitioners to learn from the speakers and also to share ideas with one another. Registration materials are available online at http://ajei.law.smu.edu.
The Dallas Bar Association Business Litigation Section recently hosted an outstanding panel discussion with five judges from the Fifth Circuit Court of Appeals. I have been attending appellate continuing legal educations presentations for seventeen years, and this one was among the best I’ve seen. Judges Gregg Costa, Jennifer Elrod, James Graves, Stephen Higginson, and Catharina Haynes all offered pointers for lawyers practicing before the Fifth Circuit. Here are some that I found particularly noteworthy:
1. It is extremely easy to waive error in federal court, much more so than in state court. So having a lawyer focused on error preservation in the trial court is invaluable.
2. Complete your appellate brief at least seven days before its filing deadline. Set your brief down for a couple of days and then re-read it. You will likely find areas for improvement that you would not have found if you hadn’t taken a break from working on your brief. Also, ask someone unfamiliar with your case to read your brief and provide input as to what could be clarified.
3. If the disposition of one of your issues is governed by a particular fact or by a controlling opinion, it might be helpful to specify that fact or opinion in the issue presented section of your brief.
4. Appellate judges are all generalists. Even those who had a specialty before taking the bench have since become generalists. Consequently, don’t assume that the judges are familiar with a particular area of law. If your case involves an area of law that a generalist wouldn’t know, include some background about the relevant law in your brief. Consider citing to well-known treatises for this background.
5. If you can’t avoid using technical jargon or acronyms in your brief, be sure to define them.
6. Draft your brief as if your audience was composed of well-educated laymen rather than lawyers. Doing so will make the brief much clearer.
7. Clarity, brevity, honesty, and civility are the four most important characteristics of a good appellate brief. Although it shouldn’t require an explanation, civility means not being rude or impolite.
8. If you indicate in your brief that something is in the record, be sure that it really is. Electronic records make it quite easy for judges to confirm the accuracy of your references to the record.
9. If you truly want oral argument, be sure that your brief explains in detail why oral argument is needed for your case. Boilerplate language is not helpful here.
10. In appellate briefing and at oral argument, don’t say “I think,” “I believe,” or “it seems to me.” The judges don’t want your opinion. They want you to tell them what the law requires.
11. Unnecessarily criticizing the trial court judge is offensive to the appellate judges.
12. At oral argument, begin by letting the judges know what issues you intend to address and in what order. Then, when you are about to begin actually addressing one of those issues, let the judges know which issue are about to begin addressing.
13. At oral argument, be prepared for a judge to ask: (a) what is the most critical fact in your case; (b) what is the most important opinion you rely upon; and (c) what is the rule of law you would like the court to adopt.
14. At oral argument, (a) don’t speak too quickly; (b) don’t speak too quietly; (c) don’t gesticulate too much; (d) don’t be theatrical; and (e) don’t be self righteous or indignant.
15. At oral argument, don’t ask questions of the judges. It is their job to ask you questions, not vice versa.
16. You can never be too prepared for oral argument. Know the record.
17. If asked to concede an obvious matter at oral argument, do so.
18. At oral argument, don’t say “with all due respect.” Judges perceive that as telling them you think that they are idiots.
19. At oral argument, be sure to directly address any question posed to you.
20. If, after filing your brief or making your oral argument, you realize that you have made a mistake (in citing to the record or the law), you should file a letter correcting your mistake. This will go a long way toward restoring your credibility with the judges.
21. Don’t make weak arguments. If there is a weakness in your case, acknowledge it and explain why you should nevertheless win. Lack of candor is the single worst mistake that you can make in appellate advocacy. If you fail to acknowledge important facts or legal authority, the judges will certainly talk to their colleagues about you. . . and may even admonish you publicly when they issue their opinion.
UPDATE: The Texas Lawbook’s Mark Curriden saw this blog post and asked me to revise it into an article. On September 15, 2014, The Texas Lawbook published the article.
I am honored that my peers have once again voted to include me in “The Best Lawyers in America” list.
After the Dallas Business Journal published an article about the U.S. Supreme Court’s recent Hobby Lobby decision, a number of people asked me about potential impact on various business. Here are my thoughts:
Despite all the attention the case has gotten, the opinion might only directly impact two U.S. companies. The Affordable Care Act (also known as “the ACA” or “Obamacare”) itself only applies to companies with more than 50 employees. And the Supreme Court opinion only provides an exception to the ACA for closely-held companies.
There are, at most, a few dozen closely-held companies in the country which employ more than 50 people. That universe is further narrowed by the fact that the opinion only applies to companies with owners having sincerely-held religious beliefs opposing contraception. Of the few dozen closely-held that employ more than 50 people, only Hobby Lobby and Conestoga Wood Specialties (a Mennonite-owned cabinet company which was addressed in the Supreme Court opinion) have indicated that their ownership espouses sincerely held religious beliefs opposing contraception.
If another one of these few dozen companies were to suddenly claim sincerely-held religious beliefs opposing contraception, such a company would likely face a difficult and expensive legal battle to join Hobby Lobby and Conestoga in being exempt from the ACA’s contraception mandate. Specifically, in challenging Hobby Lobby and Conestoga’s claims to an exemption, the federal government did not question that the ownership of these companies had the requisite sincerely-held religious beliefs opposing contraception, as it was abundantly clear that they did. The ownership of both of these companies have long histories of being vocal about their religious beliefs opposing contraception.
On the other hand, if a company whose ownership had historically been silent about this issue were to now begin professing a sincerely-held religious belief opposing contraception, the federal government would almost certainly contest the sincerity of the company’s claimed religious belief. That would require a company to spend large sums of money on legal fees, likely outweighing any hoped-for savings on the cost of contraceptives (or insurance premiums for the contraceptives). Additionally, if the federal government were to contest the sincerity of a company’s claimed religious belief, the company’s individual owners would all be subject to giving lengthy depositions about their religious beliefs, any acts in their personal lives that might have been inconsistent with those religious beliefs (such as whether they had ever used contraceptives with any sexual partner), and their personal investments in companies that may not share those religious beliefs.
Of the few dozen closely-held companies with more than 50 employees, I would not be surprised if Hobby Lobby and Conestoga were the only companies directly impacted by the Supreme Court’s opinion.
Whether you are a law student studying Texas appellate procedure or are a Texas lawyer who doesn’t regularly handle appeals, you might be in need of answers to frequently asked questions about Texas appellate law. Having been unable to find a compilation of appellate law FAQs specific to Texas state courts, I have compiled a list of responses to questions frequently asked of me in my appellate law practice. This list of questions and answers is not intended to serve as a comprehensive resource about how to practice in a Texas court of appeals. However, if you can think of another frequently asked question about Texas appeals, please let me know.
1. Does filing a mandamus petition automatically stay the trial court order at issue?
No. However, the litigant filing a mandamus petition may file a motion in the court of appeals to stay the underlying order. See Texas Rule of Appellate Procedure 52.10(a). It is important to note that the court of appeals cannot consider such a motion until the mandamus petition itself has been filed. See In re Terminix Int’l Co., L.P., 131 S.W.3d 651, 653 (Tex. App. — Corpus Christi 2004, orig. proceeding).
2. Does filing an appeal stop enforcement of the judgment?
No. See Texas Rule of Appellate Procedure 25.1(g). However, the litigant filing the appeal may supersede the judgment (1) by agreement of the parties; (2) by filing a supersedeas bond; (3) by making a deposit with the trial court clerk; or (4) by providing alternate security ordered by the trial court. See Texas Rule of Appellate Procedure 24.1(a).
3. If parties do not supersede the judgment against them, do they lose their right to appeal?
No. See Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 787-87 (Tex. 2006).
4. Does the date that a trial court judge denies a motion for new trial impact appellate deadlines?
No. If a motion for new trial is timely-filed, the notice of appeal is due 90 days after the judgment was signed regardless of when the trial court denies the motion. See Texas Rule of Appellate Procedure 26.1(a)(1).
5. When can a court of appeals consider findings of fact? In what situations should a litigant request findings of fact?
A court of appeals can consider findings of fact — and a litigant should consequently request them — whenever the trial court judge served as finder of fact a/k/a fact finder. See Sears Roebuck & Co. v. Wilson, 963 S.W.2d 166, 168 (Tex. App. — Fort Worth 1998, no pet.). If a trial court judge grants summary judgment, the judge has held that there are no facts to find. Consequently, findings of fact on the granting of a summary judgment would be improper. See Williams v. Americas Tire Co., Inc., 190 S.W.3d 796, 811 (Tex. App. — Dallas 2006, pet. denied).
6. What happens if the trial court judge does not file findings of fact by the deadline?
If the trial court judge does not file findings of fact by the deadline to do so, the litigant seeking the findings must file a notice that the findings are past-due. See Texas Rule of Civil Procedure 297. If the trial court judge still does not file findings of fact, the court of appeals may abate the appeal and order the trial court judge to file the findings of fact. See Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 298 (Tex. App. — Houston [14th Dist.] 2010, no pet.).
7. What is the deadline to file a petition for writ of mandamus?
There is no fixed deadline for filing a petition for writ of mandamus. See CMH Homes v. Perez, 340 S.W.3d 444, 454 (Tex. 2011). However, when litigants have unreasonably waited to file their mandamus petition, relief may be denied based on the equitable principle of laches. See In re Mabray, 355 S.W.3d 16, 22 (Tex. App. — Houston [1st Dist.] 2010, orig. proceeding [mand. denied]).
8. May a litigant cite to an unpublished opinion in an appellate brief?
Yes. While unpublished opinions technically have no precedential value, they may be cited in an appellate brief. The citation must include the parenthetical “not designated for publication.” See Texas Rule of Appellate Procedure 47.7(b). It is important to note that, since January 1, 2003, appellate courts have not had the option of issuing unpublished opinions. So, even if an opinion issued on or after that date carries the designation “unpublished,” the opinion nevertheless constitutes a published opinion. See Texas Rule of Appellate Procedure 47.7(b). This is true even if the official reporter has never included the opinion in a Southwest Reporter and assigned the opinion a volume and page number.
9. Is an appellate court judgement enforceable as soon as it is issued?
No. An appellate court judgment is not enforceable until the appellate court has issued its mandate. See In re City of Cresson, 245 S.W.3d 72, 74 (Tex. App. — Fort Worth 2008, orig. proceeding). An appellate court generally will not issue its mandate until after all deadlines for further review by Texas state appellate courts have passed. See Texas Rule of Appellate Procedure 18.1.
10. When may a litigant file an interlocutory appeal?
An interlocutory order is a trial court order that does not dispose of all parties and all claims in the case. See In re K.E.A., 359 S.W.3d 387, 388 (Tex. App. — Dallas 2012, no pet.). An appeal of an interlocutory order is an interlocutory appeal. See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). An interlocutory appeal is only possible when expressly allowed by statute. See Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). Texas Civil Practice & Remedies Code section 51.014(a) lists a number of interlocutory orders which are appealable.
11. How can a litigant get an appeal accelerated or otherwise expedited?
Whenever an interlocutory appeal is permitted, the interlocutory appeal is automatically accelerated. See Texas Rule of Appellate Procedure 28.1(a). Appeals of final judgments in quo warranto proceedings are also accelerated. See Texas Rule of Appellate Procedure 28.1(a). The appeal of a final judgment in a primary contest is also accelerated. See Texas Rule of Appellate Procedure 28.1(a); Texas Election Code § 232.014(b). Although not technically accelerated, appeals of other final judgments are “given precedence by law.” See Texas Rule of Appellate Procedure 40.1(a). For example, appeals from final judgments in unemployment disputes are apparently given precedence by law. See Texas Labor Code § 212.208. The same is true when there is a final judgment of dismissal based on a litigant’s exercise of right of free speech, right to petition, or right of association. See Texas Civil Practice & Remedies Code § 27.008(b). Additionally, an appellate court has discretion to give precedence to any “case that the court determines should be given precedence in the interest of justice.” See Texas Rule of Appellate Procedure 40.1(c). So, a litigant may file a motion requesting that an appeal be accelerated.
12. How should a litigant calculate the amount of bond or cash deposit required to supersede a judgment?
The bond or cash deposit must be in an amount equal to or greater than “the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment.” See Texas Rule of Appellate Procedure 24.2(a)(1). When the judgment is for something other than money, the trial court judge must rule on how the judgment can be superseded. See Texas Rule of Appellate Procedure 24.2(a)(2, 3).
13. Can a judgment be superseded by pledging real estate or personal property?
A judgment can superseded by pledging real estate or personal property only if the trial court judge expressly approves doing so. See Texas Rule of Appellate Procedure 24.1(a)(4).
14. If the trial court clerk or court reporter misses the deadline (or is about to miss the deadline) to file the record, what do the appellants need to do?
Nothing. The trial court clerk and the court reporter — not the appellants — are responsible for filing the record. See Texas Rule of Appellate Procedure 35.3. Before this responsibility applies, however, the appellants must first request the record and make payment arrangements for it. See Aguero v. Aguero, 225 S.W.3d 236, 237 (Tex. App. — El Paso 2006, no pet.).
15. If an appeal is transferred from one court of appeals district to another and there is a conflict in the case law of the two courts, does the transferee court apply its own law or the law of the transferring court?
If an appeal is transferred from one court of appeals district to another and there is a conflict in the case law of the two courts, the transferee court must apply the law of the transferring court. See Texas Rule of Appellate Procedure 41.3.
16. Does the Texas Supreme Court have jurisdiction to review all appeals decided by one of the courts of appeals?
No. Texas Government Code section 22.001(a) lists the situations in which the Texas Supreme Court has appellate jurisdiction.
17. If a litigant misses the deadline to file a notice of appeal, can the case still be appealed?
Within fifteen days after the notice of appeal deadline, a litigant may file a notice of appeal and a motion to extend the notice of appeal deadline. See Texas Rule of Appellate Procedure 26.3.
18. If a litigant misses the deadline to file an appellate brief, may the litigant file a motion for extension after the fact?
Yes. See Texas Rule of Appellate Procedure 38.6(d).
19. If a litigant misses the deadline to file a petition for review, may the litigant file a motion for extension after the fact?
Yes, but only if the motion is filed within fifteen days after the deadline. See Texas Rule of Appellate Procedure 53.7(f).
20. When should a litigant file a petition for review versus an application for writ of error?
Prior to September 1, 1997, to seek Texas Supreme Court review of a court of appeals decision on an appeal, litigants needed to file an application for writ of error. From that date forward, litigants have needed to file a petition for review. See Texas Rule of Appellate Procedure 51.1; Checker Bag Co. v. Washington, 27 S.W.3d 625, 640 (Tex. App. — Waco 2000, pet. denied).
21. What is a Texas Court of Civil Appeals?
Prior to September 1, 1981, the Texas intermediate appellate courts had jurisdiction only over civil cases and were called “courts of civil appeals.” From that date forward, the intermediate appellate courts have also had jurisdiction over criminal cases and have been called “courts of appeals.” See In re Allcat Claims Service, L.P., 356 S.W.3d 455, 461 (Tex. 2011).
22. What is a transcript? What is a statement of facts?
The compilation of pleadings and other trial court documents prepared by the trial court clerk for purposes of appeal was known as a “transcript” until September 1, 1997, when it became known as a “clerk’s record.” In Texas appellate law, the term “transcript” does not correctly refer to — and has never correctly referred to — a court reporter’s transcription. The court reporter’s transcription of the proceedings (and any corresponding exhibits) for purposes of appeal was known as a “statement of facts” until September 1, 1997, when it became known as a “reporter’s record.” See Texas Rule of Appellate Procedure 34; Texas Dep’t of Pub. Safety v. Burrows, 976 S.W.2d 304, 307 n.2 (Tex. App. — Corpus Christi 1998, no pet.); In re VanDeWater, 966 S.W.2d 730, 733 n.4 (Tex. App. — San Antonio 1998, orig. proceeding). Under the current appellate rules, a “statement of facts” is the section of an appellate brief in which a litigant recites the facts of the underlying case. See Texas Rule of Appellate Procedure 38.1(g).
23. May a litigant ever choose which court of appeals will hear the litigant’s appeal?
Yes. Texas Government Code section 22.201 provides that both the Fifth Court of Appeals (in Dallas) and the Sixth Court of Appeals (in Texarkana) have jurisdiction over judgments of trial courts in Hunt County. Similarly, section 22.201 provides that both the Sixth Court of Appeals (in Texarkana) and the Twelfth Court of Appeals (in Tyler) have jurisdiction over judgments of trial courts in Wood, Upshur, Gregg, and Rusk counties. For cases arising out of these five counties, the appellants may chose between the two relevant courts of appeals. See Miles v. Ford Motor Co., 914 S.W.2d 135, 137, 138 n.4 (Tex. 1995). Although the First Court of Appeals and the Fourteenth Court of Appeals (both in Houston) have overlapping jurisdiction over a number of counties, for judgments out of such counties, the assignment to a court of appeals is random rather than by choice of the appellants. See Texas Government Code § 22.202(h).
24. If a litigant wishes to seek mandamus relief against a trial court judge, must the litigant seek such relief from the court of appeals before seeking the relief from the Texas Supreme Court?
Generally, yes. However, if there is a “compelling reason” to do otherwise, the litigant may proceed directly to the Supreme Court. See Texas Rule of Appellate Procedure 52(e).
25. Is a litigant required to file a motion for rehearing in the court of appeals before filing a petition for review with the Texas Supreme Court?
No. That requirement was eliminated effective September 1, 1997. See Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 n.3 (Tex.1998).
26. What must a litigant do to qualify for oral argument in the court of appeals?
If litigants would like oral argument, they must request it on the front cover of their brief. See Texas Rule of Appellate Procedure 39.7. However, even if oral argument is requested, the court of appeals may deny oral argument. See Texas Rule of Appellate Procedure 39.1.
27. Is filing a mandamus petition necessary to preserve error for appeal?
No. See Walker v. Packer, 827 S.W.2d 833, 842 n.9 (Tex. 1992).
28. What is a notice of restricted appeal?
If a litigant fails to file a timely notice of appeal, the litigant may file a notice of restricted appeal within six months of the complained-of judgment provided that the litigant did not participate — either in person or through counsel — in the hearing that resulted in the judgment and did not timely-file a postjudgment motion or a timely request for findings of fact. See Texas Rules of Appellate Procedure 26.1(c), 30.
29. What is a writ of error appeal?
The term “writ of error appeal” was replaced with the term “restricted appeal” effective September 1, 1997. See Texas Rule of Appellate Procedure 30.
DISCLAIMER: These responses to frequently asked questions about Texas appellate procedure are applicable to many appeals from Texas state courts. However, these responses only address the general rules and do not address any exceptions to the general rules. Consequently, these responses may not be applicable to your particular case. As such, you should not rely upon any of these Texas appellate law FAQ answers. Rather, you should have a Texas appellate lawyer review the background of your particular appeal and provide you with answers specific to your case. Dallas appellate attorney Chad Ruback has provided this general information about Texas appeals for educational purposes only, and nothing herein shall constitute legal advice. Moreover, nothing herein shall establish an attorney-client relationship with Mr. Ruback or his appellate law firm. Mr. Ruback will not be your attorney unless and until he signs a representation agreement expressly agreeing to be your attorney.
The Dallas Bar Association Judiciary Committee recently hosted a panel discussion with three prominent appellate judges. Catharina Haynes is the only federal appellate judge in the Dallas-Fort Worth area. After years of sitting as a Dallas state trial court judge, she was appointed to sit on the Fifth Circuit Court of Appeals. Debra Lehrmann is the only Texas Supreme Court justice from Fort Worth. Along with Chief Justice Nathan Hecht, she is one of only two Texas Supreme Court justices who began judicial service in North Texas. After a distinguished career in a large Dallas law firm, Elizabeth Lang-Miers serves as a justice on the Fifth District Court of Appeals, which reviews the cases from Texas state trial courts in Dallas County and five other counties.
The three panelists offered a number of helpful tips for lawyers practicing before appellate courts. Here are some that I found particularly helpful:
1. Limit the number of issues being raised in your appellate brief. Judges loathe briefs that appear to be throwing things at the wall hoping that something will stick. And, by including a relatively week issue in your brief, you will make your strong arguments appear less credible.
2. Keep in mind that an appellate judge has a heavy reading load. As such, to avoid potentially frustrating the judge, keep your brief focused and concise.
3. Study opinions in cases analogous to yours to determine what underlying facts and what legal authority were necessary to write those opinions. Then, draft your brief so as to include the facts and law you anticipate will be helpful in writing the opinion in your case.
4. Don’t just recite the standard of review in your brief. Instead, incorporate the standard of review throughout your legal arguments. Specifically, for each of your legal arguments, explain the impact of the standard of review on that argument.
5. Before you begin writing your brief, give some thought to what relief you would like the court of appeals to grant. Then, keep that relief in mind as you are formulating your arguments.
6. Your brief should provide an orderly roadmap to a judge who is writing an opinion in your favor. Make the roadmap easy to follow.
7. Your brief should tell a good story. The more enjoyable your brief is to read, the better.
8. Your brief should be clear and easy to follow. After you finish writing your brief, set it down for a few days, then pick it up and read it again to confirm that it still makes sense to you. Even better, ask others to read your brief and let you know what they had trouble understanding.
9. Don’t disparage anyone else involved in the case (e.g., opposing counsel, opposing party, trial court judge). Appellate judges do not appreciate ad hominem arguments.
10. The table of contents can be a powerful persuasive tool. Don’t waste this opportunity to persuade an appellate judge, as this may be the first part of your brief that he or she reads.
11. An appellee should address the appellant’s points in the same order raised by the appellant. If you absolutely must deviate from the appellant’s order, your appellee’s brief should point this out to the court. Otherwise, you are wasting the judges’ time by making them determine which appellee’s point matches up with which appellant’s point.
12. Don’t make an appellate judge flip back and forth between your brief and another document. Instead of making the appellate judge look at the document (e.g., the lower court’s judgment / opinion, the underlying contract, etc.), be sure to summarize the document’s relevant language in your brief.
13. Don’t take any liberties with what is contained in the record or in case law. The judge’s law clerk will catch such deception and will point it out to the judge.
14. It might be helpful to include a visual aid in your brief (e.g., diagram, photograph, etc.) to help the judge understand the underlying facts. If, for example, you are attempting to show the judge that the text of an underlying contract was too small, you could include an actual-size reproduction of the contract’s text.
15. Allow plenty of time to edit your brief. A poorly-edited brief is not likely to impress an appellate judge.
16. Acknowledge weaknesses in the law and in the facts. If you don’t point out your weaknesses, an appellate judge will discover them anyway, costing you credibility with the court. Moreover, when you point out your weaknesses, you have an opportunity to explain why the judge should rule in your favor in spite of the weaknesses.
17. Give a lot of thought to what you request in the prayer of your brief. Your prayer should not simply be an afterthought. If possible, in your prayer, be sure to include alternatives to granting you all of the relief you are requesting. Otherwise, a judge who is not inclined to give you all of the relief you are requesting might have to give you no relief at all.
18. When you are filing a petition in a court of discretionary review (such as the Texas Supreme Court), effective appellate advocacy is much different than it is when filing a brief to a court of mandatory review (such as the Dallas Court of Appeals). In a court of mandatory review, your focus should be on explaining why the lower court was right or wrong. In a court of discretionary review, your primary focus should be on why the issue you raise will significantly impact jurisprudence . . . and whether the lower court was right or wrong should be no more than a secondary focus. In a court of discretionary review, you should try to make your issues stand out from the issues in other cases vying for the judge’s attention. To do this, you should have a “hook” and repeat that hook throughout your filing. Good drafting and editing is even more important in a court of discretionary review than it is in a court of mandatory review. That is because, even if your issue could significantly impact jurisprudence and the lower court was obviously wrong, a judge is not inclined to grant review if your drafting is weak. Rather, the judge is likely to simply wait to grant review until a similar issue is raised by a well-drafted brief in another case.
19. When preparing for oral argument, think outside the box as to all sorts of questions that you might be asked. Don’t just think about your case. Instead, think of questions about how various rulings in your case could impact other cases. Be prepared to address questions about a hypothetical case with facts slightly different from yours.
20. Don’t argue that an appellate court should rule in a certain way merely because a sister court (or a lower court) has done so in another case, as this is simply not true. The Dallas Court of Appeals is under no obligation whatsoever to rule consistently with the Fort Worth Court of Appeals.
21. When preparing for oral argument, make yourself thoroughly familiar with the record. Appellate judges don’t have much patience with a lawyer who hasn’t done so prior to argument. If you aren’t willing to commit the time needed to learn the record, then you probably shouldn’t request oral argument.
22. If there is one point that you really want to make at oral argument, you should plan to make it at the very beginning of your argument. Once the judges being asking you questions, you may never have the opportunity to make the one point that is most important to you.