Appellate Law
Texas Appellate Law Blog 
Civil appellate practice tips, resources, and news on matters before the Texas appellate courts.
Post Frequency: 0.8/day Last Entry: November 05, 2009 at 15:41:09 Recent Entries: 237
By D. Todd Smith
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Appellate Rules & Deadlines? There's an App for That
Posted on November 05, 2009Dallas family-law specialist Jimmy Verner has provided a new incentive for Blackberry users to switch to an iPhone with VernerLegal's release of two applications directly relevant to Texas appellate lawyers: Texas Litigation Deadlines (home screen pictured) and Texas Appellate Procedure Rules...
Justice Eva Guzman Selected for Open SCOTX Seat
Posted on October 08, 2009As reported in the Houston Chronicle, Governor Perry has selected 14th Court of Appeals Justice Eva Guzman (pictured) to fill the seat recently vacated by former Justice Scott Brister. Justice Guzman will be the first Latina to serve on the Court. Because she is filling an unexpired term, she will stand for election as the incumbent in 2010...
Twitter Top 20
Posted on September 29, 2009Texas Lawyer approached me once more to write about Twitter, this time to compile a "Top 20" list of interest to those who practice in the Lone Star State. The article appeared in yesterday's issue (paid subscription required). The new digital edition—which is really cool, by the way—can be uploaded here...
Soliciting Potential "Greenbook" Revisions
Posted on September 24, 2009The Texas Law Review is working on on a new edition of the Texas Rules of Form, more affectionately known as the "Greenbook." The call for suggestions or comments, with the relevant contact information, is available here. Some issues are already being discussed over at the Supreme Court of Texas Blog, including citations to court opinions outside of paid research services (Westlaw or LEXIS) and the future of Texas's subsequent-history system...
Breaking Down the SCOTX Shakeup
Posted on August 25, 2009It seems like something this newsworthy happens every time I go on vacation and unplug for a while. In the wake of Justice Harriett O'Neill's decision not to stand for re-election in 2010, Justice Scott Brister (pictured) has announced that he will be leaving the Texas Supreme Court in a few weeks to re-join Andrews Kurth and head the firm's appellate practice...
Justice Harriet O'Neill's Seat Open for 2010
Posted on August 06, 2009In a news release issued today, the Texas Supreme Court has announced that Justice Harriet O'Neill (pictured) will not seek re-election when her term ends at the end of 2010. Justice O'Neill has not confirmed her post-Court plans, although rumors have swirled that she may run for Attorney General...
Passing the Appellate Advocate Torch
Posted on July 25, 2009The Summer issue of The Appellate Advocate has been posted to the State Bar Appellate Section's website. Section members will receive hard copies in the mail within the next few weeks. This issue is dedicated to the memory of Rusty McMains, a cornerstone of the Section, who died in late June...
Ah, Summer Recess
Posted on July 17, 2009For the past couple of weeks, we have seen a slowdown from a very busy spring and early summer at the Texas Supreme Court. That's because the Court has entered its traditional "summer recess," which generally begins in early July and ends in late August...
Trial Courts Must Explain Reason for Granting New Trial
Posted on July 06, 2009Historically, Texas trial judges have been afforded very broad discretion in granting new trials. Readers who took a Texas civil procedure course in law school may recall being taught that an order granting a new trial may be reviewed under only two circumstances: (1) when the order is void (such as when the trial court lacked jurisdiction); or (2) when the trial court erroneously concluded that answers in the jury charge irreconcilably conflict...
Texas Supreme Court Orders & Opinions 6/12/09
Posted on June 12, 2009The Texas Supreme Court released two new opinions with this week's regular orders, both of which involved petitions for writ of mandamus. In In re Hall (No. 07-0322), the Court held that an indigent adult who had been adjudicated delinquent as a minor and received a 40-year sentence had no statutory right under the Juvenile Justice Code to appointed counsel in a habeas corpus proceeding...
More Recusal Motions Coming in Texas Appeals
Posted on June 08, 2009This morning's release of the U.S. Supreme Court's 5-4 decision in Caperton v. A.T. Massey Coal Co. (No. 08-22) could open the door to more recusal motions in Texas appellate courts (and possibly trial courts). In Caperton, the Court held that due process required a West Virginia Supreme Court of Appeals justice to recuse himself from a case in which his largest single campaign contributor was a party...
Spring Appellate Advocate Now Available
Posted on June 04, 2009The Spring issue of The Appellate Advocate has been posted to the Appellate Section's website. In addition to the usual features, this issue contains announcements seeking applications for the position of editor (due June 30) and entries for the Section's annual songwriting contest (due August 15)...
Mail Distribution of Winter Appellate Advocate
Posted on May 22, 2009Because of a communication error between the State Bar and printer, a significant number of Appellate Section members did not receive hard copies of the Winter Appellate Advocate (vol. 21, no. 3) in the mail. The issue is available electronically here...
Extensions of Time in the Fifth Circuit
Posted on May 04, 2009Let's be honest. Most state-court appellate practitioners find the Fifth Circuit a little byzantine. But one thing the Fifth Circuit does right is allow the clerk's office to grant short unopposed briefing extensions—up to 15 days—over the telephone...
Texas Supreme Court Orders 3/20/09
Posted on March 20, 2009Not surprisingly, the Texas Supreme Court released no new opinions with its Spring Break week orders.
Texas Supreme Court Orders 3/12/09
Posted on March 13, 2009The Texas Supreme Court issued no new opinions with this week's regular orders. The upcoming week is Spring Break in and around Austin. The Court next meets in conference on March 23 & 24.
Texas Supreme Court Orders 3/13/09
Posted on March 13, 2009The Texas Supreme Court issued no new opinions with this week's regular orders. The upcoming week is Spring Break in and around Austin. The Court next meets in conference on March 23 & 24.
Appellate Advocate News
Posted on March 09, 2009Following up on this post, I am pleased to announce that Hein Online has finished archiving past volumes of The Appellate Advocate. The 1987 inaugural issue through volume 20, number 4 are now available by following the "Appellate Advocate" button and the "Archives" link on the State Bar Appellate Section's website...
Texas Supreme Court Orders & Opinion 3/6/09
Posted on March 06, 2009The Texas Supreme Court released one new opinion with today's regular orders. In Phillips v. Bramlett (No. 07-0522), the Court considered the relationship between (1) former Article 4590i's cap limiting physicians' (and other health care providers') liability to $500,000, adjusted for inflation (Section 11...
Texas Supreme Court Orders 2/6/09
Posted on February 06, 2009The Texas Supreme Court issued no opinions with this week's regular orders. Things have been very quiet lately. The Court has conferences scheduled for Monday and Tuesday of next week and again on February 23 and 24, so I suspect the floodgates will open and we'll have several new decisions before month's end...
Interlocutory Appeal After Final Judgment?
Posted on February 05, 2009Although appeal is generally not available absent a final judgment, Texas law allows parties to bring accelerated interlocutory appeals in several circumstances. In most cases, the trial is stayed by statute until the interlocutory appeal is resolved, But sometimes the trial court renders a final judgment before then...
Third Court Upholds Future Mental Anguish Award
Posted on February 03, 2009In Hyde Park Baptist Church v. Turner (No. 03-07-00437-CV), a case involving allegations that a young child suffered abuse at the hands of a church daycare worker, the Third Court of Appeals has affirmed a money judgment that included a significant award for future mental anguish...
Texas Supreme Court Orders 1/30/09
Posted on January 30, 2009The Texas Supreme Court released no new opinions with this week's regular orders. What struck me about these orders is the unusually high number of cases abated in light of bankruptcy proceedings. I suppose that's a sign of the times.
Texas Supreme Court Orders & Opinion 1/23/09
Posted on January 23, 2009The Texas Supreme Court issued one decision with this week's exceptionally short set of regular Friday orders. In In re Watkins (No. 06-0653), the Court denied mandamus relief from an order granting the plaintiff a 30-day extension of time for filing an expert report under CPRC § 74...
Texas Supreme Court Orders 1/16/09
Posted on January 16, 2009The Texas Supreme Court issued no new opinions with this week's regular orders. It did, however, release a corrected opinion in Columbia Medical Center of Las Colinas, Inc. v. Hogue (04-0575) that clarified when the 2003 amendments to the statutory interest rate became effective...
Legislative Watch 2009
Posted on January 13, 2009Today marks the beginning of the 81st Texas Legislature. A number of bills that would affect litigators and appellate practitioners are expected, many of which failed to pass during the last session. I will be keeping an eye on noteworthy bills as they are introduced and will comment on them as my workload permits...
Marketing Your Practice in 140 Characters or Less
Posted on January 12, 2009Having seen some of my blog posts about Twitter, the folks at Texas Lawyer approached me about writing an article explaining it from a hands-on perspective. The result of my efforts, entitled "Marketing Your Practice in 140 Characters or Less," appears in today's issue...
Marketing Your Practice in 140 Characters or Less
Posted on January 11, 2009Having seen some of my blog posts about Twitter, the folks at Texas Lawyer approached me about writing an article explaining it from a hands-on perspective. The result of my efforts, entitled "Marketing Your Practice in 140 Characters of Less," appears in today's issue...
Texas Supreme Court Orders & Opinions 1/9/09
Posted on January 09, 2009The Texas Supreme Court issued four decisions with this week's regular orders, the first set released in 2009. All of the opinions and available electronic briefs and oral argument audio files are available through this link. To review Osler McCarthy's summaries, click here.
Internet-Based Practice Management Solutions
Posted on January 06, 2009Regular readers of this blog know that I'm interested in technology and how it impacts law practice. In keeping with that interest, I wrote an article for the January issue of the Texas Bar Journal entitled "Internet-Based Practice Management Solutions...
Happy New Year (and Second Birthday Texas Appellate Law Blog)!
Posted on January 01, 2009Two years ago today, I launched this blog—the first of its kind in Texas— to engage folks who are interested in or involved with civil appellate issues. As was the case last New Year's Day, publishing content and interacting with readers remains very fulfilling, and the blog continues to open doors for my practice...
Texas Lawyers to Follow on Twitter
Posted on December 23, 2008Borrowing an idea from JD Scoop, I have decided to compile and maintain an index of Texas lawyers, legal professionals, and firms who actively use Twitter. The alphabetical list (by username) appears below. Like everything else, Twitter is what you make of it...
Flying Solo in Appellate Law
Posted on December 22, 2008pimg alt="Faculty @ SPU" align="left" src="http://solopracticeuniversity.com/member-badges/spu-faculty-125x125.jpg" //p pIn early 2006, when I first seriouslynbsp;pondered leavingnbsp;BigLaw and opening a solonbsp;practice, I foundnbsp;a great deal ofnbsp;information and supportnbsp;through various listservs and blogs...
Microblog Roundup 12/20/08
Posted on December 20, 2008pA sample of my microblog entries thus far in Decembernbsp;appears below. To receive all of my updates, follow me on Twitter at at a href="http://twitter.com/dtoddsmith"@dtoddsmith/a./p p style="margin-left: 40px"Thanks to @glambert for including me as nos...
Texas Supreme Court Orders Opinions 12/19/08
Posted on December 19, 2008pThe Texas Supreme Court issued a href="http://www.supreme.courts.state.tx.us/Historical/121908.asp"fivenbsp;new opinions/a and one supplemental opinion on rehearing with a href="http://www.supreme.courts.state.tx.us/historical/2008/DEC/121908.htm"this week's regularnbsp;orders/a, itsnbsp;last set for 2008...
Texas Supreme Court Orders & Opinions 12/19/08
Posted on December 19, 2008The Texas Supreme Court issued five new opinions and one supplemental opinion on rehearing with this week's regular orders, its last set for 2008. The next regular orders will be released on Friday, January 9, 2009. Osler McCarthy's opinion summaries are available here.
More Oral Arguments?
Posted on December 16, 2008As I prepare for an oral argument tomorrow, I came across this article from Texas Lawyer reporting that the intermediate appellate courts are granting argument in more cases. That's welcome news, if it holds up. The article quotes incoming Third Court Chief Justice Woodie Jones as supporting a default position that the Court should grant oral argument...
Let the 2010 Judicial Races Begin!
Posted on December 12, 2008Shortly after the election, I mentioned having heard rumblings that a sitting justice on the Third Court of Appeals may be leaving. I haven't brought it up again because I hadn't confirmed it directly with the judge in question, but with this story, the news has been broken...
Texas Supreme Court Orders 12/12/08
Posted on December 12, 2008After a week filled with oral arguments, the Texas Supreme Court released no new opinions with this week's regular orders. The Court will be in conference on Monday and Tuesday, so we'll likely see some decisions next Friday.
Chief Justice Jones to Preside Starting January 14
Posted on December 11, 2008Incoming Third Court of Appeals Chief Justice Woodie Jones won't take office for a few more weeks, but he is already showing up on the Court's January oral argument calendar. After next Wednesday (when I happen to be arguing a case), the Court's next oral submission date is January 14, 2009, with the Chief presiding over the morning panel...
Texas Supreme Court Orders & Opinions 12/5/08
Posted on December 05, 2008The Texas Supreme Court issued four new decisions with this week's orders. Links to the opinions are available here. The two signed opinions involved mandamus actions. (The other two were per curiam opinions on petitions for review.) I haven't looked at the statistics, but it seems as if the Court has put out more mandamus decisions than usual lately.
Blogging Break
Posted on December 04, 2008You may have noticed that things haven't been very active here at the Texas Appellate Law Blog over the last few weeks. I've had plenty of things to write about, but just haven't found the time to sit down and put together coherent posts on those subjects that add any significant value...
Microblog Roundup 11/25/08
Posted on November 25, 2008A sample of my microblog entries from the past week appears below. To receive all of my updates, follow me on Twitter at at @dtoddsmith. Just got word in one of my cases that a federal district judge has granted my side's motion to remand, pending since early 2008...
Texas Supreme Court Orders & Opinions 11/21/08
Posted on November 21, 2008The Texas Supreme Court issued two new opinions with this week's regular orders. They are: Wagner & Brown, Ltd. v. Sheppard (No. 06-0845), holding that, under the applicable pooling clauses, expiration of a lease in a pool of oil-and-gas-producing properties did not destroy the mineral interest owner's participation in the pooled unit...
Microblog Roundup 11/18/08
Posted on November 18, 2008A sample of my microblog updates from the past week appears below. To receive all of my updates, follow me on Twitter at at @dtoddsmith. ABA Journal surveying lawyers about job market and state of economy. Results to be published in Jan. issue: http://tinyurl...
Weber Named First Assistant AG
Posted on November 14, 2008Texas Attorney General Greg Abbott has named my friend Andrew Weber (pictured) First Assistant Attorney General. He replaces Kent Sullivan, who Governor Perry recently appointed to the Fourteenth Court of Appeals. Aside from his legal skills, Andrew is a heck of a nice guy...
Texas Supreme Court Orders & Opinions 11/14/08
Posted on November 14, 2008The Texas Supreme Court decided seven new cases with this week's orders. For details, please see Osler McCarthy's case summaries, which I have made available here.
Follow the Texas Supreme Court Via RSS
Posted on November 14, 2008Hat tip to the Supreme Court of Texas Blog for pointing out that the Court has enabled RSS feeds via its home page. As the following screenshot shows, the subscribe button is located just above the Court's photo. The feeds include news and updates, as well as information from the Court's calendar...
Review of Litigation Announces Appellate Symposium
Posted on November 13, 2008The Review of Litigation, a student journal at the University of Texas School of Law, has asked me to help promote its upcoming symposium entitled “The Rise of Appellate Litigators and State Solicitors General.” Timed to coincide with the tenth anniversary of the Texas Solicitor General's Office, the symposium will explore the creation of state solicitor general and state appellate chief positions, as well as matters significant to private appellate practitioners...
Extensions of Time in the Third Court
Posted on November 12, 2008Dealing with the ever-present problem of conflicting deadlines, I recently filed a motion for extension of time to file a reply brief in the Third Court of Appeals here in Austin. My opponent kindly agreed to a 30-day extension, which I determined would be more than sufficient to get the brief done and manage my other cases...
Microblog Roundup 11/11/08
Posted on November 11, 2008A sample of my microblog updates from the past week appears below. As before, I'm including only those relevant to this blog or otherwise of interest to appellate practitioners. To receive all of my updates, follow me on Twitter at at @dtoddsmith...
Texas Supreme Court Orders 11/7/08
Posted on November 07, 2008The Texas Supreme Court issued no new opinions with this week's orders. After several quiet weeks, and now that the election is over, I would expect some decisions next Friday.
Texas Appellate-Court Election Results
Posted on November 05, 2008Despite speculation that Democrats might pick up at least one spot, no Texas Supreme Court seats changed hands yesterday. Chief Justice Jefferson and Justices Wainwright and Johnson each handily defeated their opponents, so the Court will remain all-Republican a while longer...
Microblog Roundup 11/4/08
Posted on November 04, 2008A sample of my microblog updates from the past week appears below. I've decided to include only those relevant to this blog or otherwise of interest to Texas appellate practitioners. To receive all of my updates, follow me on Twitter at at @dtoddsmith...
Fall Appellate Advocate Now Available Online
Posted on November 04, 2008The Fall 2008 issue of The Appellate Advocate is now available through the State Bar Appellate Section's newly revamped website. As usual, the publication is packed with interesting articles and useful case updates. As a service to its members and the public, the Section has elected to post the electronic version before the print edition is mailed...
If An Appeal Is Not Available, Do I Have Any Other Options for Obtaining Higher Court Review?
Posted on November 02, 2008This is the fourth installment of my series entitled "20 Questions About Texas Appellate Practice." The question answered here is: "If an appeal is not available, do I have any other options for obtaining higher court review?" Visit the original post (linked above) for the list of questions updated with links to their respective answers...
Texas Supreme Court Orders 10/31/08
Posted on October 31, 2008The Texas Supreme Court issued no new opinions with this week's regular orders. Happy Halloween!
"A Whole New World": Recent Developments in Texas Mandamus Practice
Posted on October 28, 2008That was the title of a CLE presentation I gave last Friday to members of the Austin Bar Association as part of its Fourth Friday CLE series. In addition to some basic mandamus principles, I covered recent rule changes affecting mandamus practice and how recent Texas Supreme Court decisions have treated the requirement that relator have no adequate remedy at law...
Microblog Roundup 10/28/08
Posted on October 28, 2008Here's a sample of my microblog updates from the past week or so. Follow me on Twitter at at @dtoddsmith, Per recent media contacts, I'm quoted & my blog is mentioned in this Texas Lawyer article re judicial race, http://tinyurl...
On Reluctance to Engage Appellate Counsel, Part 2
Posted on October 27, 2008Following up on this post, Greg May at the California Blog of Appeal has completed the third and fourth installments of his series discussing the reasons trial lawyers or their clients choose not to engage appellate counsel. The entire series is available through this link...
Oral Argument Rituals
Posted on October 26, 2008Over at MyShingle.com, Carolyn Elefant has posted on some of the things she does to prepare for oral argument and has solicited others' stories. Here is what I told her: I don't have what I would consider to be rituals or superstitions...
Texas Supreme Court Orders 10/24/08
Posted on October 24, 2008The Texas Supreme Court issued no opinions with this week's orders. Of interest, the Court issued stays in three mandamus cases, a subject on which I happen to be speaking today (mandamuses, not stays).
Microblog Roundup 10/21/08
Posted on October 21, 2008Microblogging consists of brief text updates published broadly or to a restricted group chosen by the author. My microblog can be found on Twitter at @dtoddsmith, where I invite you to become a follower. Recent microblog posts include: New at TALB: Announcing creation of Texas Appellate Law LinkedIn Group: http://tinyurl...
Welcome to the Reverse & Render Blog!
Posted on October 20, 2008Another Texas appellate blog has burst on the scene. The appellate practice group at Cowles & Thompson, P.C. has launched Reverse & Render, which (according to its welcome post) was created "with the goal of providing useful information to civil appellate practitioners and to the public at large...
Join the Texas Appellate Law Group on LinkedIn
Posted on October 20, 2008LinkedIn has become a useful networking tool for professionals, and lawyers are no exception. Six months ago, the number of lawyer profiles on LinkedIn was estimated at just under 120,000. As more lawyers become educated about the value of social media, there's no telling how high that number will climb...
Texas Supreme Court Orders & Opinion 10/17/08
Posted on October 17, 2008The Texas Supreme Court issued one opinion with this week's regular orders. In DiGiuseppe v. Lawler (No. 04?0641), the Court (Third Court of Appeals Justice Alan Waldrop—appointed under Tex. Gov't Code § 22.005—joined by Justices Hecht, Wainwright, Brister, and Willett) held that a real-estate purchaser seeking specific performance of the contract had to prove that he was ready, willing, and able to perform and request a jury question on that issue...
Law Bloggers Meet-up in Austin Tonight
Posted on October 16, 2008LexBlog's Kevin O'Keefe and I will be getting together around 8:00 tonight while he is here in Austin speaking at a State Bar program on thought leadership and reputation management. Law bloggers and others are welcome to join us...
Blog Action Day 2008: Appellate Pro Bono Programs
Posted on October 15, 2008Blog Action Day is an annual nonprofit event that encourages bloggers, podcasters, and videocasters around the world to post about the same issue on the same day. Its aim is to raise awareness and trigger a global discussion. This year's theme is poverty...
Statistics I'd Like to See
Posted on October 15, 2008As I ponder yet another case in which the court of appeals has declined to hear oral argument, I'm wondering whether anyone has compiled statistics on how often the trial court's judgment is reversed in that situation. In other words, based on sheer numbers, should we be telling our appellant-clients that they're probably hosed if oral argument has been denied?
What Is Required to Perfect Appeal?
Posted on October 14, 2008This is the third installment of my series entitled "20 Questions About Texas Appellate Practice." The question answered here is: "What is required to perfect appeal?" Visit the original post (linked above) for the list of questions updated with links to their respective answers...
Microblog Roundup 10/13/08
Posted on October 13, 2008Microblogging consists of brief text updates published broadly or to a restricted group chosen by the author. My microblog can be found on Twitter at @dtoddsmith, where I invite you to become a follower. As evidence that I'm not a total law dork, the content there is a little more personal...
Texas Supreme Court Orders & Opinion 10/10/08
Posted on October 10, 2008The Texas Supreme Court re-issued one previously released opinion with this week's regular orders. In Kerlin v. Sauceda (05-0653) (originally decided 8/29/08), the court made the following wording changes at the end of the last complete paragraph on page 12 of the PDF version: But if a nonresident’s is amenable to service of process under the longarm statute and has contacts with the state are sufficient to afford personal jurisdiction under the general longarm statute, as was the case with Kerlinit is undisputed Kerlin’s were, then we can discern no reason why a nonresident’s “presence” in this state would not be established for purposes of the tolling statute...
"Appellate Practice Marketing 2.0"
Posted on October 09, 2008That was the title of a CLE presentation I gave today to the San Antonio Bar Association's Appellate Practice Section. In addition to "traditional" techniques—such as doing “law” work in trial courts; handling pro bono appeals; writing articles and giving speeches; bar association work; and networking with trial lawyers, industry professionals, and other appellate lawyers—my main focus was blogging...
Appellate Court Internal Operating Procedures
Posted on October 08, 2008Appellate courts are often criticized as being stuck in the "ivory tower," largely because their work is done out of the public eye and is therefore shrouded in mystery. Among other recent efforts to make the appellate process more transparent, nearly all of the intermediate Texas appellate courts have posted their internal operating procedures on their respective web sites...
On Reluctance to Engage Appellate Counsel
Posted on October 06, 2008Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal? That's the question my blogging cohort Greg May has posed over at the California Blog of Appeal. Greg has begun a series of posts in which he examines the reasons commonly provided when trial lawyers or their clients are faced with an appeal and choose not to engage appellate counsel...
Texas Supreme Court Orders 10/3/08
Posted on October 03, 2008The Texas Supreme Court issued no new opinions with this week's short set of orders. The Court will be in conference on Monday and Tuesday of next week, so next Friday's orders may be livelier.
Microblog Roundup 10/01/08
Posted on October 01, 2008Taking a page from tech guru Dennis Kennedy's book, and as an extension of what I did here, I'm going to experiment with posting occasional roundups from my Twitter feed on this blog. (Dennis, Walter Olson, and at least a few others have taken to calling their Twitter accounts "microblogs," which seems both accurate and catchy to me, so I will do the same...
Microblog Roundup 10/1/08
Posted on October 01, 2008Taking a page from tech guru Dennis Kennedy's book, and as an extension of what I did here, I'm going to experiment with posting occasional roundups from my Twitter feed on this blog. (Dennis, Walter Olson, and at least a few others have taken to calling their Twitter accounts "microblogs," which seems both accurate and catchy to me, so I will do the same...
Some Third Court Practice Tips
Posted on September 30, 2008As discussed previously, Third Court of Appeals Justice Diane Henson spoke to the Austin Bar Association's Solo and Small Firm Section last week. With her permission, I am posting a copy of her handout here. Justice Henson gave a useful overview of how the Third Court conducts its business and offered some useful briefing and oral-argument tips...
Texas Supreme Court Orders & Opinions 9/26/08
Posted on September 27, 2008The Texas Supreme Court released seven opinions with this week's regular orders. They are: Unauthorized Practice of Law Committee v. Nationwide Mutual Insurance Company (No. 05-0130) (per curiam), denying the petition for review based on its recent "captive counsel" decision, but leaving open the question of whether an insurer engages in the unauthorized practice of law by employing staff attorneys to represent its affiliates’ insureds...
Justice Henson to Address Austin Bar Section
Posted on September 24, 2008Justice Diane Henson will be speaking to the Austin Bar Association's Solo and Small Firm Section at noon tomorrow, September 25, in the ABA seminar room. The topic will be "Practice Pointers From the Third Court of Appeals...
5 Blogs & 5 Blawgers
Posted on September 21, 2008I've been tagged by Brooks Schuelke to participate in an "internet meme" started by the anonymous Editor of Blawg Review a couple of weeks back. The concept works sort of like a chain letter: the respondent in this meme is supposed to identify and link to five non-law blogs of interest and then tag five other law bloggers to do the same...
What Is the Deadline for "Ungranting" a New Trial?
Posted on September 20, 2008The headline to this post sounds like a question one might see on the appellate board-certification exam, which is coming up in a few weeks. So, in that spirit, let's do some multiple choice. Without peeking, try and select the correct answer from this list: a...
Texas Lawyers Could Use This Kind of Resource
Posted on September 19, 2008As discussed this morning at Don Cruse's Supreme Court of Texas Blog and picked up by How Appealing, Justice Don Willett wrote an interesting op-ed that appeared recently in the online version of the Austin American-Statesman. (Note to the Statesman's editorial staff: When you receive a submission from a sitting Texas Supreme Court justice, it's probably a good idea to publish it in the print edition as well...
Texas Supreme Court Orders 9/19/08
Posted on September 19, 2008For the third straight week, the Texas Supreme Court released no opinions with today's regular orders. This means the Court has technically issued no decisions this fiscal year. Rest assured, that will change soon. Aside from its regular business, the Court has responded to Hurricane Ike much like it did with previous disasters—by issuing an order providing for extended filing deadlines because of courthouse closures and other after-effects...
Insight for an Aspiring Appellate Lawyer
Posted on September 16, 2008Over at his Legal-Writing Blog, Prof. Wayne Schiess offered up what one of his students wrote after expressing the desire to become an appellate lawyer and after working in the appellate-practice group at a law firm: I learned some valuable lessons about appellate practice, and the difference between enjoying something in school and enjoying it in a law-firm setting...
Texas Supreme Court Docket Analysis
Posted on September 15, 2008At the recent Advanced Appellate Seminar, Texas Supreme Court watcher and appellate practitioner Pam Baron presented a paper summarizing her analysis of the Court's docket as of September 1, 2008. With Pam's permission, I am making her paper available here...
Texas Supreme Court Orders 9/12/08
Posted on September 12, 2008The Texas Supreme Court issued no opinions with this week's orders. All eyes between here and the Gulf Coast are on Hurricane Ike. You know things are serious when high school and college football games are rescheduled.
Results of the Twitter Experiment
Posted on September 11, 2008As mentioned here, I experimented with Twitter last week by "live-tweeting" from the Advanced Appellate Seminar here in Austin. I picked up a few followers as a result of this effort—including one who also tweeted from the CLE—but it otherwise seems as though the experiment went unnoticed...
SBOT Appellate Section Re-Launches Web Site
Posted on September 05, 2008The State Bar Appellate Section officially rolled out its re-designed website today. The new, user-friendly interface is full of useful information and contains links to a number of handy resources. I suggest that anyone reading this blog visit the new site and bookmark it for future reference...
Texas Supreme Court Orders 9/5/08
Posted on September 05, 2008The Texas Supreme Court issued no opinions with today's short set of regular Friday orders. It's nice to get a breather after last week's flood of new decisions.
Twitter Updates From Advanced Appellate Seminar
Posted on September 03, 2008Armed with my new iPhone 3G, I'm going to conduct a little social media experiment and "live Twitter" from the Advanced Civil Appellate Practice Course tomorrow and Friday. If you're interested, follow the discussion at http://twitter...
Fifth Circuit Closed After Gustav
Posted on September 02, 2008From his evacuation site in Montgomery, Alabama, my blogging colleague Tad Bartlett of The Bartlett Blawg reported that the Fifth Circuit will be closed following the passage of Hurricane Gustav. As he wrote this morning: The U.S. Court of Appeals for the Fifth Circuit is officially closed September 2 & 3 (oral arguments for this week have been moved to Texas courthouses), and all filings due between September 1 and 5 have been automatically extended to September 8, 2008...
What Kinds of Orders Are Subject to Appeal in Texas?
Posted on September 02, 2008This is the second installment of my series entitled "20 Questions About Texas Appellate Practice." The question answered here is: "What kinds of orders are subject to appeal in Texas?" Visit the original post (linked above) for the list of questions updated with links to their respective answers...
Revised TRAP Amendments Effective Today
Posted on September 01, 2008Following up on this post, the Texas Supreme Court has quietly issued orders formally amending the Texas Rules of Appellate Procedure and making technical corrections to the amendments. The amendments went into effect today...
Texas Supreme Court Orders & Opinions 8/29/08
Posted on August 29, 2008As predicted, the Texas Supreme Court issued a monster set of orders today, releasing opinions in 22 cases (two of which were merely corrected or supplemental opinons in previously decided cases). As has been the trend recently, the Court moved some of its older pending matters, including two with "04" docket numbers...
Blawg Review #174
Posted on August 25, 2008After two consecutive Olympic-themed Blawg Reviews, I was tempted go for a third despite my initial decision not to do so. Like most of America, I am officially entering post-Olympic withdrawal, and a celebration of what were truly a remarkable Games would have been appropriate...
Texas Supreme Court Orders 8/22/08
Posted on August 22, 2008The Texas Supreme Court issued its last "summer recess" orders today. As expected, no opinions were issued. The floodgates should open with next Friday's orders. It's the last Friday of the fiscal year, so opinions issued next week will be reflected in the 2007-08 statistics.
Supreme Court Posts New Calendar Online
Posted on August 19, 2008As the Texas Supreme Court returns from its summer break, the Court has posted its calendar in a new format on its official website. The new version is vastly improved from the old Word and PDF documents previously available, as it is much easier on the eyes and provides more detailed information about the events listed...
Seeking Appellate Advocate Authors
Posted on August 13, 2008As many of you know, I am editor of the State Bar of Texas Appellate Section publication, The Appellate Advocate. We are filling out our roster of contributors for Volume 21—my last as editor per the Section's bylaws—and have several opportunities available for folks interested in contributing case updates or substantive articles...
Countdown to Blawg Review #174
Posted on August 12, 2008Two weeks from today, I'll take my second run at hosting Blawg Review, the blog carnival for everyone interested in law. My first effort was fairly well received, and I find myself wondering what I can do to top it. If anyone has suggestions for a theme or any other ideas, I'd love to hear them...
How Is the Texas Appellate Court System Structured?
Posted on August 10, 2008This is the first installment of my series entitled "20 Questions About Texas Appellate Practice." The question answered here is: "How is the Texas appellate court system structured?" Visit the original post (linked above) for the list of questions updated with links to their respective answers...
Third Court Affirms Decision Regarding Bullock's "Dream House"
Posted on August 08, 2008I'm not a star-struck person. The few times I've seen celebrities cavorting about Austin, I haven't been fazed. But just about every lawyer in town knows the story about how Sandra Bullock's "dream house" had to be torn down (allegedly) because of defective workmanship...
Texas Supreme Court Orders 8/8/08
Posted on August 08, 2008As expected, the Texas Supreme Court issued no opinions with today's regular Friday orders. I foresee two more sets like this one, but the orders expected on August 29 will be the last for the fiscal year. Keep an eye out for several opinions, particularly in some of the Court's older cases, to be released that Friday.
The Webcasting Trend
Posted on August 07, 2008Between vacations and a very full workload, I haven’t been blogging all that much over the summer. Nevertheless, I got a call last week from a reporter at law360.com who saw my posts on webcasting court proceedings and wanted to interview me for an article she was writing...
Texas Supreme Court Orders 8/1/08
Posted on August 01, 2008The Texas Supreme Court issued a typical set of summer recess orders today. Things will stay quiet for a few more weeks, at which time the Court will likely crank out several opinions to cap off the 2007-08 fiscal year. The new fiscal year starts September 1.
Texas Supreme Court Orders 7/25/08
Posted on July 26, 2008With yesterday's regular Friday orders, the Texas Supreme Court denied the petitions for review in five family law cases with the following notation:The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding the constitutionality of Texas Family Code section 263...
Supreme Court Rolling Out New Digitization Projects
Posted on July 24, 2008Even before the Texas Supreme Court began live webcasting oral arguments and archiving recent arguments last year (previously discussed here and here), the Court had ditched its old system of recording oral argument on audio cassette tapes...
Texas Supreme Court Orders 7/18/07
Posted on July 18, 2008In keeping with the start of summer recess, today's Texas Supreme Court orders were something of a non-event to anyone other than folks with a direct interest in the listed cases. I, for one, will enjoy the quiet while it lasts.
20 Questions About Texas Appellate Practice
Posted on July 16, 2008Now that the Texas Supreme Court has broken for the summer (sort of), I'd like to start a series I'm calling "20 Questions About Texas Appellate Practice." My intent is to answer the questions someone unfamiliar with Texas appellate law might ask when faced with the prospect of taking or defending an appeal in the Lone Star State...
Two Years and Counting
Posted on July 14, 2008This past Saturday marked the second anniversary of my law firm. My sentiments today are much the same as when I wrote this post marking the first year:One year ago today, I departed big firm life to start my own appellate boutique—if you can call one lawyer a boutique! The result has exceeded my expectations in almost every way...
Texas Supreme Court Orders & Opinions 7/11/08
Posted on July 11, 2008The Texas Supreme Court issued four decisions with this week's regular orders.In City of Waco v. Lopez (No. 06?0089), a retaliatory discharge action in which the City filed a plea to the jurisdiction, the Court held that the Texas Commission on Human Rights Act provided the exclusive state statutory remedy...
A Belated Welcome to the Tyler Appeals Blog!
Posted on July 09, 2008Several months ago, Tyler appellate lawyer Jeff Rambin contacted me for input on a blog he was putting together focusing on appellate matters in East Texas. Like me, Jeff signed up with LexBlog, whose designers did just as good a job with his blog as they did with mine...
Clearly, a Reason to Avoid Using Intensifiers
Posted on July 07, 2008Faced with an opposing brief that preceding a conclusion with the word "clearly," my first supervising partner sometimes responded with this quote from Texas Supreme Court Justice Nathan Hecht:I have learned in more than a decade of judging that what is claimed to be clear seldom is...
22nd Annual Advanced Civil Appellate Practice Course
Posted on July 06, 2008The State Bar Appellate Section and Texas Bar CLE are co-sponsoring the 22nd Annual Advanced Civil Appellate Practice Course, which is set for September 4-5, 2008 at the Four Seasons Hotel here in Austin. The popular Appellate Boot Camp will take place on September 3 and the Section's annual meeting is scheduled for September 6, to be followed by a cocktail reception with the judiciary...
Texas Supreme Court Orders & Opinions 6/27/08
Posted on June 27, 2008The Texas Supreme Court issued four decisions—two of which were among the older cases on its docket—with this week's regular orders.In Pleasant Glade Assembly of God v. Schubert (No. 05-0916), the Court held that a church was not estopped from asserting its constitutional rights, reversed a money judgment against the church, and rendered judgment of dismissal because the case represented an ecclesiastical dispute over religious conduct...
Justice James A. Baker, 1931-2008
Posted on June 24, 2008While I was out on vacation, I received the sad news that former Texas Supreme Court Justice James Baker had passed away. Aside from numerous media reports summarizing his many accomplishments, the Court has issued this tribute, which captures the essence of the man...
Programming Note
Posted on June 21, 2008I'm away on vacation and am spending time with my family rather than blogging. For summaries of yesterday's Texas Supreme Court decisions, see Osler McCarthy's summaries or visit my blogging colleague Don Cruse's Supreme Court of Texas Blog. I'll be back online next week.
Texas Supreme Court Orders & Opinions 6/13/08
Posted on June 13, 2008The Texas Supreme Court issued four new decisions and one substituted opinion with today's regular orders.In General Electric Co. v. Moritz (No. 0871), the Court reaffirmed that a landowner owes an independent contractor’s employees no duty to warn of obvious hazards they already know about, rejecting the plaintiff's argument that his knowledge of the hazard was simply a factor for the jury to consider in assessing comparative negligence...
Flat Fees = Good
Posted on June 09, 2008Anyone want to hire me for a flat fee of $200,000 for a single case? Didn't think so. But then again, I'm not the former Solicitor General of the United States.
Texas Supreme Court Orders & Opinions 6/6/08
Posted on June 06, 2008The Texas Supreme Court issued three opinions with today's regular Friday orders.In In re Roberts (No. 05?0362) (orig. proceeding) (per curiam), the Court concluded that allowing plaintiffs a 30-day grace period to amend expert reports in a health-care liability case "does not substantially prolong litigation or allow for extensive discovery" and therefore does not cause the kind of delay for which mandamus is available under its recent decision in In re McAllen Medical Center...
Lincoln the Lawyer
Posted on May 31, 2008I attended the Texas Supreme Court Historical Society's annual John Hemphill Dinner last night. I believe all the justices were there, and the big ballroom at the Four Seasons here in Austin was packed as always.Professor Mark Steiner from South Texas College of Law was the keynote speaker, and he talked about his new book An Honest Calling: The Law Practice of Abraham Lincoln...
Texas Supreme Court Orders 5/30/08
Posted on May 31, 2008The Texas Supreme Court issued two opinions with this week's regular orders.In Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation District No. 1 (No. 06-0904), the Court concluded that the district exceeded its rule-making authority, reversed the court of appeals' judgment, and rendered judgment declaring the permitting scheme at issue invalid...
Texas Supreme Court Orders & Opinions 5/30/08
Posted on May 31, 2008The Texas Supreme Court issued two opinions with this week's regular orders.In Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation District No. 1 (No. 06-0904), the Court concluded that the district exceeded its rule-making authority, reversed the court of appeals' judgment, and rendered judgment declaring the permitting scheme at issue invalid...
Supreme Court Lets FLDS Decision Stand
Posted on May 29, 2008I'm a little late to this party—I just happened to be at a conference today and another function this evening with some of the lawyers involved—but the Texas Supreme Court denied the State's mandamus petitions in the FLDS cases this afternoon...
$26 Million Vioxx Judgment Reversed
Posted on May 29, 2008$4.85 billion In Merck & Co. v. Ernst (No. 14-06-00835-CV), the Fourteenth Court of Appeals has reversed Mark Lanier's $26.1 million judgment in a highly publicized Vioxx case and has rendered judgment that the plaintiff take nothing...
Blawg Review #161, Memorial Day Edition
Posted on May 28, 2008I've been working on a brief and until this evening hadn't seen the special Memorial Day edition of Blawg Review over at Patent Baristas. The lead-in photo alone is worth the visit. Thanks to editor Stephen Albainy-Jenei for including my oft-updated post entitled "FLDS Children Going Home?" I don't feel worthy...
Recap of Fifth Circuit En Banc Arguments
Posted on May 27, 2008Over at the relatively new Bartlett Blog, Tad Bartlett provides a blow-by-blow of the recent Fifth Circuit en banc arguments, including the In re Volkswagen venue case that’s generating a lot of discussion these days because it threatens the Marshall “rocket docket...
Ranking the States' High Courts
Posted on May 22, 2008On the heels of a hotly debated study declaring that California has the top state high court (see discussion here, here, and here), another paper has reached the same conclusion. At least this time the authors are from other states.Neither the Texas Supreme Court nor the Texas Court of Criminal Appeals fared particularly well...
FLDS Children Going Home
Posted on May 22, 2008In In re Steed (No. 03-08-00235-CV) (orig. proceeding) (per curiam), the Third Court of Appeals has conditionally granted the petition for writ of mandamus and vacated the district court's order placing more than 400 FLDS children in state custody...
So Much for Delay on the Lead Rate Case
Posted on May 22, 2008The Third Court of Appeals has released its opinion in the lead State Farm rate case, Geeslin v. State Farm Lloyds (No. 03-05-00067-CV). So much for any concerns that the recent panel-switch would delay the decision—although the Court did not decide all the cases together, as Chief Justice Law indicated it might...
FLDS Presents Appellate Pro Bono Opportunities
Posted on May 21, 2008The pro bono committees of the Austin Bar Civil Appellate Section and the State Bar Appellate Section are distributing the following message regarding the FLDS matter in El Dorado:Appellate Pro BonoVolunteers Needed*********El Dorado ChildrenLawyers from across the state have volunteered to represent children from the Yearning for Zion Ranch in El Dorado...
More on Judges and Blogs
Posted on May 20, 2008At some level, every blog is built on shameless self-promotion. To that end, I'm happy to point out some attention generated by my recent post entitled Newsflash: Appellate Judges Read Blogs: The piece was picked up by the online version of the Wall Street Journal and mentioned over at the Sophistic Miltonian Serbonian Blog...
Should I Run an Ad Like This?
Posted on May 16, 2008For 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...
This Week's Supreme Court Orders & Opinions
Posted on May 16, 2008The Texas Supreme Court decided six cases and issued one substituted opinion with this week's orders. Briefly, the new decisions are: First American Title Insurance Co. v. Combs (No. 05-0541), affirming the Comptroller's interpretation of a retaliatory tax statute affecting foreign insurers...
Newsflash: Appellate Judges Read Blogs
Posted on May 15, 2008While attending a bar function today, a local appellate justice I have met a few times before recognized me, introduced me to his companions as the author of an appellate blog, and confessed (?) to being one of my regular readers. I have had similar conversations with other members of the appellate bench in recent months...
The Fifth Circuit's Practioner's Guide
Posted on May 14, 2008One of my goals in creating this blog was to have it serve as a sort of "home page" for lawyers involved in Texas appeals by providing links to resources those folks are likely to need at some point in the appellate process...
The Fifth Circuit's Practitioner's Guide
Posted on May 14, 2008One of my goals in creating this blog was to have it serve as a sort of "home page" for lawyers involved in Texas appeals by providing links to resources those folks are likely to need at some point in the appellate process...
Craig Ball to Speak on E-Discovery
Posted on May 10, 2008Though somewhat afield from this blog's primary focus, the topics of electronic discovery and computer forensics should concern anyone practicing law in this day and age. I am therefore pleased to announce that nationally recognized expert Craig Ball—a board-certified trial lawyer in his own right—will speak to the Austin Bar Association's Solo & Small Firm Section at noon on Thursday, May 22, 2008 at the Austin Bar office...
No Supreme Court Opinions This Week
Posted on May 09, 2008The Texas Supreme Court released no opinions with this week's orders.Of interest, check out these posts from the Sophistic Miltonian Serbonian Blog and the Supreme Court of Texas Blog about the recent Texas Watch report criticizing the Court's alleged overreliance on per curiam opinions...
Stretch the Facts, Go to Jail?
Posted on May 08, 2008The following is a guest post from Roger Hughes of Adams & Graham, LLP:Lawyers, and perhaps appellate attorneys, now face a new problem if their briefs or pleadings stretch facts or are flat wrong about them. That problem is indictment and jail...
Why I Love Oral Argument
Posted on May 07, 2008As mentioned in my last post, I've been tied up getting ready for an oral argument I had today before the Third Court of Appeals here in Austin. The case is not the kind you would usually get that excited about, but we have a couple of good legal issues, and it got a fair amount of media attention when it was tried...
Preparing for Argument
Posted on May 06, 2008I am preparing for an oral argument tomorrow, which explains my silence on a number of issues worthy of commentary, including media coverage of the Perry Homes v. Cull decision and Ted Cruz's new position at Morgan Lewis. The Supreme Court of Texas Blog and others have covered these issues well...
New Panel in State Farm Rate Case
Posted on May 03, 2008From an article in yesterday's Houston Chronicle:Five years after Texas insurance regulators ordered State Farm to cut homeowners' rates by 12 percent, the insurance company's legal battle to avoid the reduction continues to languish. The latest delay came this week, when nearly three years after the case was submitted to a three-judge panel of the Third Court of Appeals, it was assigned to a new panel...
Supreme Court Vacates Arbitration Award
Posted on May 02, 2008The Texas Supreme Court issued one new decision and one substituted opinion with this week's regular Friday orders.In Perry Homes, a Joint Venture v. Cull (No. 05-0882), the Court held that the plaintiffs waived their right to arbitration by substantially invoking the litigation process, including "request[ing] hundreds of items of merits-based information and conduct[ing] months of discovery under the rules of court" before changing their minds "only four days before the trial setting ...
Three Steps for Improving Your Legal Writing
Posted on May 01, 2008Wayne Schiess, the head of UT's legal-writing program and author of Wayne Schiess's legal-writing blog, spoke to the Austin Bar Association's Solo & Small Firm Section last week. Following the premise that lawyers are professional writers—an observation that applies with even greater force to appellate counsel—Prof...
Third Court Cancels FLDS Oral Argument
Posted on April 26, 2008By this order, the Third Court of Appeals has canceled the oral argument on the application for emergency stay in In re Sara Steed, et al. (No. 03-08-00235-CV) and has summarily denied the stay. The court also denied the stay sought in the companion case, In re Faithann Jessop, et al...
No Supreme Court Opinions This Week
Posted on April 25, 2008The Texas Supreme Court issued no opinions with this week's short set of regular Friday orders. The Court has been quite productive lately, as a number of the justices have mentioned at various bar functions, though several cases have been decided per curiam and merely follow a signed opinion on a particular issue...
Third Court to Hear FLDS Mandamus April 29
Posted on April 24, 2008It turns out that Tuesday's post about FLDS appeals coming to Austin was timely. According to this press release and what I can gather from the Third Court of Appeals' web site, lawyers for Texas RioGrande Legal Aid filed a mandamus petition yesterday asking the court to order District Judge Barbara Walther to hold hearings at which each family would be able to respond to allegations of abuse before the children are placed in foster care in locations throughout the state...
Mr. Shore Argues to SCOTUS
Posted on April 24, 2008Believe it or not, I'm a sucker for lawyer TV shows, in part because they're so unrealistic they make me laugh. I'd pretty much given up on ABC's Boston Legal this season; for various reasons, I thought the show had jumped the shark. But I couldn't help noticing Tuesday's episode entitled "The Court Supreme," in which James Spader's character, Alan Shore, argues an appeal to the U...
FDLS Appeal(s) Will Come to Austin
Posted on April 22, 2008The West Texas town of Eldorado is more than 200 miles from Austin. So imagine my surprise when I realized that any appeals coming out of the drama surrounding the Fundamentalist Church of Jesus Christ of Latter Day Saints "Yearning for Zion" Ranch (which the ABA Journal describes as "what surely will be among the largest child custody cases in U...
This Week's Supreme Court Orders & Opinions
Posted on April 18, 2008The Texas Supreme Court issued six opinions with this week's orders. I'm currently out of the office attending the Austin Bar Association Bench/Bar Conference (at which I am moderating a panel presentation by three Third Court of Appeals justices), so I haven't had an opportunity to review the opinions yet...
Should In-House Counsel Stick with Big Firms on Appeal?
Posted on April 15, 2008In last week's Fat Friday e-newsletter (available through Technolawyer), lawyer-coach Debra Bruce outlined five reasons why corporate general counsel generally stick to BigLaw, despite rumblings about how high hourly rates and associate salary increases may lead them elsewhere...
Haynes Confirmed to 5th Circuit
Posted on April 10, 2008The Tex Parte Blog is reporting that former Dallas district judge Catharina Haynes (pictured) has been confirmed to the United States Court of Appeals for the Fifth Circuit. She joins Judge Jennifer Elrod (previously discussed here) as Baker Botts alumna recently taking seats on the court...
Jim Ho Named Solicitor General
Posted on April 09, 2008The "quiet trickle of a rumor" that Gibson, Dunn & Crutcher's James C. Ho (pictured) will succeed Ted Cruz as Solicitor General of Texas is true. Attorney General Greg Abbott's press release is available here.I have had the privilege of serving with Jim on The Appellate Advocate's editorial board for the past two years...
Forthcoming Appellate Rule Changes
Posted on April 08, 2008The Texas Supreme Court recently announced changes to several Texas Rules of Appellate Procedure and the adoption of Texas Rule of Judicial Administration 15 . The rules highlighted below will have the broadest effect in civil cases...
This Week's Texas Supreme Court Orders & Opinions
Posted on April 04, 2008After last week's barrage (from which I'm not the only one still recovering), the Texas Supreme Court issued just two decisions with this week's orders.In Ansell Healthcare Products, Inc. v. Owens & Minor, Inc. (06-0386) (per curiam), the Court followed last week's decision involving the same parties and issues, Owens & Minor, Inc...
How Should Contingent-Fee Agreements Address an Appeal?
Posted on April 01, 2008I have been surprised at the variety of ways in which contingent-fee agreements address what will happen if the case goes up on appeal. Some don't deal with it at all, other than to say that the trial attorney is not obligated to pursue or defend an appeal should one be taken...
UT Conference on State & Federal Appeals Set
Posted on March 29, 2008UT Law School will be holding its annual Conference on State and Federal Appeals on May 29-30, 2008 at the Four Seasons Hotel here in Austin. You can find more information about the conference and register online here.This is a "don't miss" event for lawyers looking to stay up to speed on current trends and emerging issues in Texas and federal appellate practice...
Join the LinkedIn Legal Blogging Group!
Posted on March 29, 2008Kevin O'Keefe of LexBlog recently started a group on LinkedIn to try and connect with more folks in the legal industry who have an interest in blogging. The group is already up to about 350 members and could eventually grow into the thousands...
This Week's Supreme Court Orders & Opinions
Posted on March 28, 2008The Texas Supreme Court made up for what had been a slow March by issuing an incredible 20 decisions with this week's orders. Timely posting links for each opinion—much less any meaningful analysis—would be unwieldy given my current schedule...
Editorial Responds to Watchdog Groups' Claims
Posted on March 27, 2008Last night, the web version of the San Antonio Express-News ran a commentary by Osler McCarthy, the Texas Supreme Court's Staff Attorney for Public Information, addressing watchdog groups' recent claims regarding alleged ethics violations and docket backlog...
The Buzz on Hall Street v. Mattel
Posted on March 26, 2008The blogosphere has been a little slow catching on to yesterday's SCOTUS decision in Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989). Aside from my own post, here are the blog entries I have found discussing the case: Adjunct Law Prof Blog, which opines that parties to a collective bargaining agreement can still alter the standard of judicial review because they are governed by 29 U...
U.S. Supreme Court Invalidates Custom Standards of Judicial Review Under FAA
Posted on March 25, 2008In Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989) (previously discussed here), the U.S. Supreme Court has held that a contract purporting to allow judicial review of an arbitration award for evidentiary and legal errors cannot be enforced under the Federal Arbitration Act...
Potential Changes to Board Certification Rules
Posted on March 24, 2008The Texas Board of Legal Specialization is considering changes to the certification criteria for Civil Appellate Law, among other areas. A redline of the potential revisions is available here.I have not studied the proposal word-for-word, but it appears to broaden the Board's discretion in determining who is authorized to sit for the exam...
More "Justice Delayed" Media Coverage
Posted on March 20, 2008A blog associated with The Dallas Morning News and KVUE-TV here in Austin have both run new stories on the Texas Supreme Court's "backlog problem." As near as I can tell, neither has unearthed any previously unreported information, so the timing is something of a mystery...
An Evening with the Texas Supreme Court
Posted on March 19, 2008The Appellate Sections of the State Bar of Texas and the Austin Bar Association are sponsoring a program entitled “An Evening with the Texas Supreme Court” on Thursday, March 27, 2008, from 4:30 to 7:00 p.m. at the InterContinental Stephen F...
Third Court Oral Argument Call-Out
Posted on March 18, 2008<a href="http://www.blogged.com"><img src="http://www.blogged.com/widgets/108858_ccf11e428092abd1de041b9b1491aeab_verify.gif" border="0" alt="Blogged.com Blog Directory" /></a>What does one have to do to get a case set for oral argument before the Third Court of Appeals? It's a a rhetorical question I've heard others ask recently...
This Week's Supreme Court Orders
Posted on March 14, 2008The Texas Supreme Court released no new opinions with this week's short set of orders. March has been quiet thus far, but I suspect we'll see a flurry of new decisions before month's end.
LexBlog Rollout
Posted on March 13, 2008I am pleased to announce that this blog has moved over to the LexBlog platform. The new URL is http://texasappellatelawblog.com.All previous posts have been incorporated into the new format, and the old URL will remain active for a few weeks to ensure a smooth transition...
Supreme Court Orders & Programming Note
Posted on March 07, 2008The Texas Supreme Court kicked off Spring Break here in Austin by issuing no opinions with today’s orders. Of interest, the Court set two cases for oral argument in Lubbock under the Texas Constitution’s “traveling roadshow” provision (art...
Fourth Court, Only Two Webcasts for You!
Posted on March 04, 2008If something looks too good to be true, it probably is. So it goes with the notion that the Fourth Court of Appeals would begin regularly webcasting oral arguments through the St. Mary’s Law School web site. According to the Tex Parte blog, the Fourth Court will hear two cases tomorrow on the St...
Request Did Not Extend Time for Appealing Summary Judgment
Posted on March 04, 2008In Finney v. Vanderbilt Mortgage & Finance, Inc. (No. 03-07-00329-CV), the Third Court of Appeals reminds us that a request for findings of fact and conclusions of law does not extend the deadline for filing a notice of appeal from a summary judgment...
Supreme Court Applies Lamar Homes in Rare February 29 Decision
Posted on February 29, 2008The Texas Supreme Court issued one opinion with this week’s orders. In Grimes Construction, Inc. v. Great American Lloyds Insurance Co. (No. 06-0332) (per curiam), the Court reversed after concluding that the court of appeals’ decision conflicted with Lamar Homes, Inc...
"Justice Delayed?" More Supreme Court Backlog Backlash
Posted on February 28, 2008Last night, WFAA-TV in Dallas ran a news feature (entitled “Justice Delayed?”) addressing the “backlog problem” at the Texas Supreme Court. Investigative reporter Byron Harris took the lead, and Austin public interest group Texas Watch contributed...
Fourth Court to Begin Live Webcasts
Posted on February 27, 2008Although I haven’t seen an official announcement (or any publicity whatsoever), it looks as if the Fourth Court of Appeals will begin webcasting oral arguments through the St. Mary’s University web site on March 5, 2008. The Fourth Court would be the logical choice for expanding the webcasting program, considering that St...
Federal Suit Challenges Chapter 74 Damages Caps
Posted on February 26, 2008As reported in The Houston Chronicle, a group of 11 plaintiffs have brought a putative class action in federal district court in Marshall seeking to have the Chapter 74 medical malpractice damage caps declared unconstitutional. Among the plaintiffs is former Dallas Cowboy Ron Springs, who has been in a coma since late last year following [...
"Bad Result" Instruction Properly Refused in Pre-HB4 Case
Posted on February 26, 2008In Austin Periodontal Associates, Inc. v. Husak (No. 03-07-00125-CV), a pre-House Bill 4 dental malpractice case, the Third Court of Appeals has affirmed a $503,923 judgment rendered after a jury trial. The dentist and his employer challenged the judgment on several grounds, most of which involved evidentiary complaints...
Bad Day for the Belts
Posted on February 22, 2008Appellants surnamed Belt had a rough day in the Third Court of Appeals. In opinions written by Justice Jan Patterson (pictured), the Court dismissed for want of jurisdiction two restricted appeals brought by Robert Belt and one brought by Justin Belt...
Supreme Court Enjoins Enforcement of Agency?s Data-Collection Method
Posted on February 22, 2008The Texas Supreme Court issued one opinion with this week’s orders. In El Paso Hospital District v. Texas Health & Human Services Commission (No. 05-0372), the Court granted the District’s motion for rehearing, withdrew the opinion issued on August 31, 2007, and substituted another in its place...
Supreme Court Enjoins Enforcement of Agency's Data-Collection Method
Posted on February 22, 2008The Texas Supreme Court issued one opinion with this week's orders. In El Paso Hospital District v. Texas Health & Human Services Commission (No. 05-0372), the Court granted the District's motion for rehearing, withdrew the opinion issued on August 31, 2007, and substituted another in its place...
Fairfield Raises More Questions Than It Answers
Posted on February 22, 2008Of all the Texas Supreme Court decisions issued last week, Fairfield Insurance Co. v. Stephens Martin Paving, LP (04-0728) is arguably the most significant. In that case, the Court answered "no"—sort of—to the Fifth Circuit's certified question, "Does Texas public policy prohibit a liability insurance provider from indemnifying an award for punitive damages imposed on its insured because of gross negligence?"More accurately, the Court reframed the question narrowly and answered it this way: "Pursuant to article V, section 3-c of the Texas Constitution and rule 58...
Bluebook Available Online?For a Price
Posted on February 21, 2008As part of my year-end spending spree (which my accountant recommended to maximize business deductions–but that’s another story), I purchased the 18th Edition of The Bluebook: A Uniform System of Citation. Now, the good folks at Harvard Law Review have announced that they are making an online version available on a subscription basis...
Fairfield Raises More Questions Than It Answers
Posted on February 21, 2008Of all the Texas Supreme Court decisions issued last week, Fairfield Insurance Co. v. Stephens Martin Paving, LP (04-0728) is arguably the most significant. In that case, the Court answered “no”–sort of–to the Fifth Circuit’s certified question, “Does Texas public policy prohibit a liability insurance provider from indemnifying an award for punitive damages imposed on [...
Bluebook Available Online—For a Price
Posted on February 21, 2008As part of my year-end spending spree (which my accountant recommended to maximize business deductions—but that's another story), I purchased the 18th Edition of The Bluebook: A Uniform System of Citation. Now, the good folks at Harvard Law Review have announced that they are making an online version available on a subscription basis...
More on Grisham?s The Appeal
Posted on February 20, 2008Following up on this post, I finished reading John Grisham’s The Appeal this past weekend. As some reviews have noted, the story is more about the politics of judicial elections than the actual appellate process, which is barely mentioned at all...
More on Grisham's The Appeal
Posted on February 20, 2008Following up on this post, I finished reading John Grisham's The Appeal this past weekend. As some reviews have noted, the story is more about the politics of judicial elections than the actual appellate process, which is barely mentioned at all...
The Appellate Judge?s Unshared Opinion
Posted on February 19, 2008In today’s On Appeal column, Law.com’s Howard Bashman discusses those instances in which an appellate judge, rather than writing a separate concurring opinion, merely issues a short statement to the effect that he or she concurs in the result...
The Appellate Judge's Unshared Opinion
Posted on February 19, 2008In today's On Appeal column, Law.com's Howard Bashman discusses those instances in which an appellate judge, rather than writing a separate concurring opinion, merely issues a short statement to the effect that he or she concurs in the result. While somewhat rare, Texas appellate justices occasionally engage in this practice...
This Week?s Supreme Court Orders & Opinions
Posted on February 15, 2008The Texas Supreme Court has been busy, issuing opinions in six cases with this week’s orders. The Court decided matters involving contractual indemnity and prompt-payment claims (on rehearing), class actions, jurisdiction under Chapter 21 of the Property Code, insurance coverage for punitive damages, an insurer’s duties to a potential additional insured, and the Good Samaritan defense...
This Week's Supreme Court Orders & Opinions
Posted on February 15, 2008The Texas Supreme Court has been busy, issuing opinions in six cases with this week's orders. The Court decided matters involving contractual indemnity and prompt-payment claims (on rehearing), class actions, jurisdiction under Chapter 21 of the Property Code, insurance coverage for punitive damages, an insurer's duties to a potential additional insured, and the Good Samaritan defense...
Supreme Court Distinguishes In re J.A.J.
Posted on February 08, 2008The Texas Supreme Court issued one opinion with today’s orders. In In re D.N.C. (No. 07-0621) (per curiam), a family law case consolidated with four others involving the same parent, the Court explained its denial of the Department of Family and Protective Services’ petitions for review...
Class Members Lacked Standing
Posted on February 01, 2008The Texas Supreme Court issued one opinion other than the new decision in Frank’s Casing with today’s orders. In DaimlerChrysler Corp. v. Inman (No. 03-1189) (written by Justice Hecht, joined by Justices Wainwright, Brister, Medina, and Willett), the Court dismissed a putative class action for want of jurisdiction on the ground that the plaintiffs’ claims–which involved [...
A Different Result in Frank?s Casing
Posted on February 01, 2008With today’s orders, the Texas Supreme Court issued a new opinion in Excess Underwriters at Lloyd’s, London v. Frank’s Casing Crew & Rental Tools, Inc. (No. 02-0730), possibly the oldest case on the Court’s docket. The Court originally decided the case in May 2005, but granted respondent’s motion for rehearing in January 2006 and heard [...
A Different Result in Frank's Casing
Posted on February 01, 2008With today's orders, the Texas Supreme Court issued a new opinion in Excess Underwriters at Lloyd's, London v. Frank's Casing Crew & Rental Tools, Inc. (No. 02-0730), possibly the oldest case on the Court's docket. The Court originally decided the case in May 2005, but granted respondent's motion for rehearing in January 2006 and heard re-argument a month later...
Third Court Taking Courtesy E-Copies
Posted on January 29, 2008As a follow up to this post on the status of e-filing in the Texas appellate courts, the Third Court of Appeals is now accepting electronic courtesy copies. The court is also asking (but not requiring) the party responsible for requesting or filing the record and briefs to submit e-copies of such documents on a [...
John Grisham?s New Book, The Appeal
Posted on January 29, 2008If you haven’t already heard, John Grisham has a new legal thriller out. It’s called The Appeal. Here’s an excerpt from Charles Taylor’s review at Bloomberg.com: [The defendant’s] next step, of course, is to appeal the verdict...
John Grisham's New Book, The Appeal
Posted on January 29, 2008If you haven't already heard, John Grisham has a new legal thriller out. It's called The Appeal. Here's an excerpt from Charles Taylor's review at Bloomberg.com: [The defendant's] next step, of course, is to appeal the verdict. Knowing that it will take several years for the case to reach the state Supreme Court, the company decides to buy a seat...
Interesting Statistics
Posted on January 28, 2008The following chart from the Houston Chronicle depicts how long argued cases have been pending before the Texas Supreme Court and the number of deciding opinions each of the justices wrote in Fiscal Year 2007. Though intended to expand on recent controversies, it provides some perspective nonetheless.
A Blockbuster Week at the Supreme Court
Posted on January 25, 2008The Texas Supreme Court has been productive despite all the recent controversy (WSJ Law Blog coverage here and here), churning out eight decisions with this week’s orders. The cases involved fraud claims, annexation, land titles, improper jury argument, apex depositions, governmental immunity, potential waiver of the right to appeal, and election law...
Welcome Supreme Court of Texas Blog!
Posted on January 23, 2008Austin appellate lawyer Don Cruse recently launched the Supreme Court of Texas Blog, which is definitely worth checking out if you haven’t seen it yet. Don covers some of the same ground I do, but his focus is narrower and deeper. I have added a link to his blog under the “Texas Law Blogs” section of my blogroll...
DRI Appellate Advocacy Seminar Set for February 28-29
Posted on January 21, 2008My fellow appellate lawyer Ray Ward (who writes a couple of excellent blogs, the (new) legal writer and Minor Wisdom) asked me to plug the upcoming DRI Appellate Advocacy Seminar, to be held at the J. W. Marriott Orlando, Grande Lakes (that’s Florida, folks) on February 28?29, 2008...
No Supreme Court Opinions This Week
Posted on January 18, 2008The Texas Supreme Court issued no opinions with this week’s orders. In other Court news, however, Chief Justice Jefferson has issued a statement expressing the Court’s dismay concerning Justice Medina’s indictment in Harris County in connection with the fire that destroyed his Houston-area home last summer...
State Employees? Birth Dates Are Public Information
Posted on January 17, 2008In Texas Comptroller of Public Accounts v. Attorney General of Texas (No. 03-07-00102-CV), the Third Court of Appeals has agreed with an attorney general opinion that state employees’ birth dates are public information subject to disclosure under the Texas Public Information Act...
Blawg Review Nominations
Posted on January 14, 2008I had the privilege of hosting Blawg Review #123 back in August. As a contributor, I have been asked to nominate other issues for Blawg Review of the Year. My nominations are: Blawg Review #110, a special Memorial Day commemoration from Biker Law Blogger Norman Gregory Fernandez...
This Week?s Supreme Court Orders & Opinions
Posted on January 11, 2008The Texas Supreme Court released four opinions with this week’s orders: In PAJ, Inc. v. Hanover Insurance Co. (No. 05-0849), a five-member majority (Justice O’Neill, joined by Chief Justice Jefferson and Justices Brister, Medina, and Green) held that an insured’s failure to timely notify its insurer of a claim does not defeat coverage if the delay caused [...
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Can a former employee use photographs of jobs completed whie working for me in marketing material for a new business?
There are several issues here
1. Sub contractor started up a compe...
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Change the locks on your door and offer her a key in exchange for the agreement....
How to release a driver's license from a court ordered hold if not suspended by state?
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I have power of attorney over my 70 year old brother in Texas. He recently remarried.
Get an attorney on this. In most states, all that is required to terminate a POA...
Is it libel to write blog posts and/or online reviews about a local business that defames one's reputation?
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