Texas Supreme Court justice shares thoughts about appellate advocacy

January 21st, 2012

I recently attended a continuing legal education seminar at which Justice Don Willett provided some tips about practice before the Texas Supreme Court. Here are the highlights of his presentation:

1. Bookmarks and hyperlinks in a document are extremely helpful.

2. The Texas Supreme Court receives a high volume of petitions for review and, consequently, the justices have very limited time to spend reviewing any one petition. Think of a petition for review like “speed dating.” You have very little time to get the justices interested. If you try to discuss too many issues in that little time, you will be unlikely to get the justices interested. Also, if you focus on winning your case rather than interesting the justices, you decrease your odds of accomplishing either. Instead, simply focus on interesting the justices. If you succeed in interesting the justices, they will want to spend more time with your case, inviting you to file a brief on the merits. And, at that point, the justices will be more receptive to arguments about why you should win the case.

3. If the court of appeals opinion indicates that a dispositive factor (e.g., waiver) keeps you from prevailing on an issue, you should address that dispositive factor in your petition for review.

4. Do not try to avoid the page limit by including matters subject to the page limit (e.g., factual background or legal argument) in a section not subject to the page limit (e.g., the statement of the case). The justices will certainly take note of this.

Court of Appeals justice shares thoughts about appellate advocacy

December 9th, 2011

I recently attended a continuing legal education seminar at which Justice Elizabeth Lang-Miers provided some tips about practice before the Dallas Court of Appeals.  Here are the highlights of her presentation:

1. An appellee’s brief should present arguments in the same order that they were presented in the appellant’s brief.  Although an appellee might be tempted to present her strongest arguments first, doing so would make it much tougher for the appellate justices to do their job.

2. Do not call opposing counsel a liar or state that she is misrepresenting something.  Lawyers who do so only make themselves look bad.  Instead, state that the parties disagree about a matter and the better interpretation is such-and-such.  If opposing counsel is truly being dishonest with the court, it will be easy for the justices to come to this conclusion by studying the case and/or the record at issue.

Dallas Court of Appeals cases for the week of November 14, 2011

November 19th, 2011

For the week of November 14, 2011, the Dallas Court of Appeals issued twelve opinions in civil cases.  Six of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining six cases are as follows:

Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C. (05-10-00323-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that denial of summary judgment is reviewable when both parties moved for summary judgment and the trial court has granted one motion and denied the other; (3) rule that, when a party moves for summary judgment on multiple grounds and the trial court’s order granting the motion does not specify the grounds relied upon for its ruling, a party appealing that order must negate all possible grounds upon which the order could have been granted; (4) rule that a trial court can render summary judgment only on those grounds that are specifically addressed in a motion for summary judgment; (5) standard for reviewing no-evidence summary judgment; (6) rule that a no-evidence motion for summary judgment that only generally challenges the sufficiency of the nonmovant’s case and fails to identify the specific elements of the nonmovant’s claim or claims that lack supporting evidence is insufficient to support summary judgment; (7) elements of civil conspiracy claim; (8) elements of breach of fiduciary duty claim; and (9) elements of negligent misrepresentation claim.

Hewitt v. Biscaro (05-10-01011-CV) – Recites well-established (1) holding that an objection that an affidavit contains hearsay is an objection to the form of the affidavit; (2) rule that a defect in the form of an affidavit must be objected to in the trial court; (3) rule that the failure to obtain a ruling on an objection to the form of an affidavit waives the objection; (4) standard for reviewing traditional summary judgment; and (5) rule that, where a party’s performance under a contract is made impracticable by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged.

In re Pruitt (05-11-01526-CV) – Recites well-established rule that court of appeals does not have mandamus jurisdiction over a justice of the peace.

Kishor v. TXU Energy Retail Co., LLC (05-10-01496-CV) – Recites well-established (1) rule that appellate court does not have jurisdiction to consider issues raised on appeal by a party who did not file or join in a timely notice of appeal; (2) standard for reviewing a trial court’s evidentiary rulings; (3) rule that an appellate court considers the entire record, including any trial on the merits, in reviewing a trial court’s venue determination; (4) standard for reviewing factual sufficiency of evidence; (5) rule that, if there is a written contract that unambiguously shows on its face that it is the obligation of the person who signed it, the signer may not introduce parol evidence to show that the signer intended to bind only his principal; and (6) rule that the trial judge is the sole arbiter of the credibility of witnesses in a bench trial.

McCoy v. Dallas Area Rapid Transit (05-10-01478-CV) – Recites well-established (1) rule that, when a party moves for summary judgment on multiple grounds and the trial court’s order granting the motion does not specify the grounds relied upon for its ruling, a party appealing that order must negate all possible grounds upon which the order could have been granted; and (2) rule that, in any suit against a governmental entity, the plaintiff must plead a valid waiver of immunity.

Riner v. Neumann (05-10-00445-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) definition of “deed of trust”; (3) rule that an alternative pleading cannot be used as a judicial admission; (4) definition of “conclusory statement”; (5) rule that a conclusory statement in an affidavit can neither support nor defeat summary judgment; (6) definition of “the American Rule”; (7) rule that a plaintiff in a trespass-to-try-title suit cannot recover damages; (8) holding that Texas’s only exception to the American Rule is the common-fund doctrine; and (9) holding that trial courts lack the authority to award attorneys’ fees contrary to the American Rule.

Dallas Court of Appeals cases for the week of November 7, 2011

November 11th, 2011

For the week of November 7, 2011, the Dallas Court of Appeals issued twenty-one opinions in civil cases.  Twelve of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining nine cases are as follows:

Broadnax v. Texas Mut. Ins. Co. (05-11-0589-CV) – Recites well-established (1) rule that a plaintiff has the absolute right to a non-suit of its case at the moment the plaintiff file a non-suit motion with the clerk or makes a motion in open court as long as the defendant has not made a claim for affirmative relief; (2) rule that an order granting a non-suit, not the requesting of a nonsuit, triggers appellate deadlines; and (3) rule that, without a timely-filed notice of appeal, an appellate court has no jurisdiction over an appeal.

Bruce v. Federal Nat’l Mortgage Ass’n (05-10-01402-CV) – Recites well-established (1) rule that, in a forcible detainer action, the only issue to be determined is whether a party seeking is entitled to immediate possession; and (2) rule that a forcible detainer action is in addition to any other remedy that a party may have, such as a question regarding title.

GE Money Bank v. Sharif (05-10-01222-CV) –  Recites well-established rule that an order granting a motion for new trial within the trial court’s plenary jurisdiction is not subject to review either by direct appeal from that order or from a final judgment rendered after further proceedings in the trial court.

Imagine Auto. Group, Inc. v. Boardwalk Motor Cars, LLC (05-11-01119-CV) – Recites well-established (1) standard for reviewing trial court’s determination of the amount of security necessary to supercede a judgment; and (2) rule that attorneys’ fees are not considered “compensatory damages” in a breach of contract case unless the contract provides for fees as compensation.  Additionally, holds that attorneys’ fees are not considered compensatory damages in a Texas Theft Liability Act case.

In re A.T. (05-10-00363-CV) – Recites well-established (1) standard for reviewing an order granting or denying a bill of review; (2) under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for reversal; and (3) statute of limitations applicable to bills of review.

In re Estate of Hudson (05-11-00008-CV) – Recites well-established rule that the proponent of a will has the burden to establish that the will is valid and has not been revoked.

In re J.D.D. (05-10-01488-CV) – Recites well-established standard for reviewing trial court’s decision to modify child support or conservatorship.

Litoff v. Meadows Serv. Corp. (05-10-01173-CV) – Recites well-established (1) standard of review of county court’s dismissal for deficient appeal bond; (2) rule that appellate jurisdiction is never presumed; and (3) rule that a court always has the authority to determine its own subject matter jurisdiction.

Walters v. 21st Century Ins. Co. (05-11-01391-CV) – Recites well-established rule that an oral notice of appeal does not constitute a notice of appeal within the meaning of the rules of appellate procedure.

Court of Appeals justice shares thoughts about e-filed appellate briefs

November 8th, 2011

I recently attended a continuing legal education seminar at which Justice Martin Richter spoke about e-filing in the Dallas Court of Appeals.  Here are the highlights of his presentation:

1. The Dallas Court of Appeals began accepting e-filing this year.  E-filing has been well-received by the court and will likely become mandatory sometime next year.

2. Don’t merely prepare an appellate brief as you’ve always done and then convert it to PDF for e-filing.  Instead, prepare the brief so that it can be easily read and navigated on an iPad. . . as all of the court’s justices now have iPads.

3. Hyperlinks and bookmarks are extremely helpful in navigating a brief. 

4. All e-filings in the court must be submitted via one of the six approved providers.  Amazingly, one of the six providers removes hyperlinks and bookmarks from briefs before forwarding the briefs to the court.  [Justice Richter did not identify this provider, but it seems that he was referring to ProDoc, which happens to be the largest provider in terms of users and filings.]

Dallas Court of Appeals cases for the week of October 31, 2011

November 8th, 2011

For the week of October 31, 2011, the Dallas Court of Appeals issued eighteen opinions in civil cases.  Fourteen of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining four cases are as follows:

Dallas County v. Logan (05-11-00480-CV) – Recites well-established (1) standard for reviewing whether trial court had subject matter jurisdiction; and (2) rule that, under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent.

Milwee-Jackson Joint Venture v. Dallas Area Rapid Transit (05-08-01164-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) standard for reviewing traditional summary judgment; (3) rule that, when both traditional and no-evidence summary motions for summary judgment are at issue, appellate court reviews no-evidence summary judgment first; (4) standard for reviewing whether access to property has been materially and substantially impaired; (5) statute of limitations applicable to inverse condemnation claims; (6) rule that sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in which the State or certain governmental units have been sued unless the State consents to suit; (7) rule that immunity from liability is an affirmative defense; and (8) elements of a “takings claim.”

Payberah v. Payberah (05-10-01098-CV) – Recites well-established (1) definition of the term “waiver”; and (2) rule that a reply brief may not be used to raise new issues on appeal.

Pediatrix Med. Group, Inc. v. Robinson (05-10-01546-CV) – Recites well-established standard for reviewing trial court’s decision with respect to expert reports required for health care liability claims.

Dallas Court of Appeals cases for the week of October 24, 2011

October 31st, 2011

For the week of October 24, 2011, the Dallas Court of Appeals issued eighteen opinions in civil cases.  Five of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining thirteen cases are as follows:

Alderson v. Alderson (05-10-01394-CV) – Recites well-established (1) holding that the occurrence of an injustice is not sufficient to justify relief by bill of review; (2) rule about when bill of review is proper; (3) rule that the only exception to the four-year bill of review statute of limitations is when the petitioner proves extrinsic fraud; and (4) definition of “extrinsic fraud.”

Chambers v. Kaufman County (05-11-00509-CV) – Recites well-established (1) rule that governmental immunity from suit defeats a trial court’s subject matter jurisdiction; (2) standard for reviewing trial court’s ruling on a plea to the jurisdiction; (3) rule that pro se litigants are held to the same standards as licensed attorneys; (4) definition of “sovereign immunity”; (5) definition of “governmental immunity”; and (6) duties owed by governmental units for “premises defects” and for “special defects.”

Deese v. Combined Specialty Ins. Co. (05-10-00707-CV) – Recites well-established standard for reviewing trial court’s denial of a mistrial.

Florance v. State (05-10-01653-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; (2) rule that, unless the record affirmatively shows the appellate court’s jurisdiction, the court must dismiss the appeal; and (3) rule that, when a trial court renders a final judgment, a party later files an amended petition, and the trial court renders a second judgment based on the amended petition, these are treated as two distinct cases for appellate purposes regardless of the fact that the two cases have the same trial court cause number.

Harrison v. Jones (05-11-00872-CV) – Recites well-established rule that appellate courts have jurisdiction over appeals only when those appeals are taken from final judgments or from interlocutory orders made appealable by the legislature.

In re A.M.A.R. (05-10-01303-CV) – Recites well-established standard for reviewing trial court’s ruling on a bill of review.

Jackson v. Citibank (South Dakota), N.A. (05-10-01399-CV) –  Recites well-established rule that pro se litigants are held to the same standards as licensed attorneys.

Key v. Muse (05-11-00071-CV) – Recites well-established standard for reviewing trial court’s ruling on motion to dismiss a health care liability claim.

LTTS Charter School, Inc. v. C2 Constr., Inc. (05-07-01469-CV) – Recites well-established (1) standard for reviewing whether trial court has subject matter jurisdiction; (2) rule that, under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent; and (3) rule that a municipality is immune from suit for torts committed in the performance of its governmental functions but not for torts committed in the performance of its proprietary functions.  Additionally, holds that “open-enrollment charter schools have governmental immunity from suit.”

Muthukumar v. Dess (05-10-01324-CV) – Recites well-established rule that pro se litigants are held to the same standards as licensed attorneys.

Nichols v. County of Dallas (05-09-01426-CV) – Recites well-established rule that, when a party petitions to recover excess proceeds following a tax lien foreclosure sale, a trial court’s order on that petition is appealable only if the order directs that the excess proceeds be paid.

Sawyer v. Deutsche Bank Nat’l Trust Co. (05-10-01634-CV) – Recites well-established rule that if a party fails to claim in the trial court that a foreclosure sale was invalid, she has not preserved this claim for appellate review.

White v. Fritz (05-10-01249-CV) – Recites well-established rule that pro se litigants are held to the same standards as licensed attorneys.

Dallas Court of Appeals cases for the week of October 17, 2011

October 21st, 2011

For the week of October 17, 2011, the Dallas Court of Appeals issued twelve opinions in civil cases.  Four of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining eight cases are as follows:

City of Dallas v. Brown (05-11-00165-CV) – Recites well-established (1) standard for reviewing whether a trial court has subject matter jurisdiction; (2) rule that, under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent; and (3) rule that, for the Legislature to waive the State’s sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the Legislature’s waiver of immunity.

In re A.L.V.Z. (05-11-00784-CV) – Recites well-established standard for reviewing trial court’s sustaining of contest to affidavit of indigence.

In re M.C. (05-11-00042-CV) – Recites well-established (1) rule that proceedings to involuntarily terminate parental rights are strictly scrutinized on appeal; and (2) rule that statutes governing involuntary termination of parental rights are strictly construed in favor of the parent.

La Providencia Food Prods. Co. v. Super Plaza Stores, LLC (05-10-00709-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) elements of common-law fraud cause of action; and (3) rule that intent and credibility of witnesses are issues for the trier of fact.

Lucky Dawg Movers, Inc. v. Wee Haul, Inc. (05-10-00222-CV) – Recites well-established rule that a trial court’s failure to respond to a request for required findings of fact is error and presumed harmful unless the record before the appellate court affirmatively shows that the complaining party suffered no harm.

Margetis v. Peterson (05-10-01281-CV) – Recites well-established rule that, to property present an issue on appeal, a party’s brief must contain argument with citations to authorities and to the record.

McIntyre v. Lexis Nexis (05-11-00809-CV) – Recites well-established rule that (1) appellate jurisdiction cannot be invoked without a signed judgment or order; and (2) a record of the court’s ruling by the court reporter is not an acceptable substitute for a written order.

Transcontinental Realty Investors, Inc. v. Orix Capital Mkts., LLC (05-10-00655-CV) – Recites well-established (1) rule that Declaratory Judgments Act cannot be used to obtain an advisory opinion; (2) rule that declaratory judgment is appropriate only when a real controversy exists between the parties and the entire controversy may be determined by the judicial declaration; and (3) rule that a case is not ripe if its resolution depends on contingent facts or events that have yet to come to pass.

Dallas Court of Appeals cases for the week of October 10, 2011

October 18th, 2011

For the week of October 10, 2011, the Dallas Court of Appeals issued five opinions in civil cases.  Four of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining case is as follows:

In re Brick (05-11-01106-CV) – Recites well-established rule that, to obtain mandamus relief, relators must show that the trial court has abused its discretion and that they have no adequate appellate remedy.

Court of Appeals justices share their their preferences about appellate briefs

October 10th, 2011

At two continuing legal education seminars I recently attended, court of appeals justices have expressed their preferences about appellate briefs.  In no particular order, here are their preferences:

1. Resist client pressure to file long appellate briefs. Clients often like long briefs, but justices seldom do.

2. Include hyperlinks (to cases cited in the brief, to the appellate record, etc.) in electronically-filed briefs.

3. Don’t use the word “whether” in your issues presented (e.g., Whether the trial court erred. . .).  You should advocate in your issues presented, and use of the word “whether” is not advocacy.  Much better would be a declarative sentence like “The trial court erred in. . .” or, alternatively, a question like “Did the trial court err in ignoring the precedent that. . .?”

4. An appellant’s brief should anticipate arguments which will likely be made in the appellee’s brief.  The appellant should not wait until his/her reply brief to address the appellee’s arguments.  Instead, the appellant’s reply brief should be used only for unanticipated arguments.

5. Always be respectful when referring to actions of trial court judges.  It’s fine to say that a trial court judge “made a mistake.”  But harsher language is unwelcome.  Remember that many appellate justices used to be trial court judges and sympathize with how hard it is for trial court judges to make decisions quickly during trial, often without the assistance of a law clerk.

6. Some appellate justices read appellate briefs on paper, some on desktop monitors, and some on iPads.  Keep this in mind when formatting briefs.

7. There is usually only one copy of the clerk’s record, but there are three appellate justices (and often three staff attorneys) working on an appeal.  So, if there is a document from the clerk’s record that you particularly want to be studied, you should include that document in your brief’s appendix.  That way, all of the justices and staff attorneys will be able to access the document at any time.

8. If you must have several authors collaborate on writing an appellate brief, be sure to give one person the authority and responsibility for performing final edits to the brief, making it read like it was written by one person rather than by a committee.

9. Include the standard of review at the beginning of the argument section of your appellate brief, and then continue to weave the standard of review throughout your argument section.  Even if the standard is unfavorable to you, embrace the standard and show how you can satisfy it.

10. In an appellant’s brief, don’t forget to let the court of appeals know what relief you are seeking.  Certainly do this in your prayer, but considering doing this at the beginning of your argument section, too.

11. When writing an appellee’s brief, you should track the order of the arguments in the appellant’s brief.  If you must deviate from this order, explain that you are doing so and why it is necessary.

12. Before filing any appellate brief, review the rule about what must be included in the brief.  You don’t want to get off on the wrong foot with the court of appeals by failing to respect its rules.

« Older Entries