Texas Appellate Law Blog

Video of SCOTX CLE Event Now Online

D. Todd Smith — Mon, 07 May 2012 11:15:43 -0600

Thanks to the efforts of Texas Supreme Court Clerk and Austin Bar Civil Appellate Law Section Council member Blake Hawthorne, video of the recent "Evening with the Texas Supreme Court" event is now available for viewing through the Court's webcast page.

I was honored to moderate this discussion as chair of the ABA Section and a member of the State Bar Appellate Section Council (which co-sponsored the event). Seven justices shared their thoughts on practice before the Court and related issues.

Don Cruse has posted his notes from the event at the Supreme Court of Texas Blog.

Tom Mighell on iPad for Litigators

D. Todd Smith — Tue, 24 Apr 2012 12:23:32 -0600

I recently had the privilege of hearing legal technology consultant Tom Mighell make his "iPad for Litigators" presentation to the Austin Bar Association's Civil Litigation. Texas lawyers may know Tom from his days as a litigator with Dallas firm Cowles & Thompson. He has authored an excellent legal tech blog, Inter Alia, for several years.

I live-tweeted Tom's talk (from @dtoddsmith) using #ipad4litigators as a hashtag, but have since received a request to re-post the tweets on this blog. Here they are, in reverse chronological order (more or less):

Thanks to @TomMighell for a very informative presentation today @theaustinbar Litigation Section meeting!

Fed Court Records is an iPhone app that provides access to PACER. Fed Bank Records app provides bankruptcy court access.

Legal research: FastCase is free. WestlawNext and LexisAdvance provide paid users great access to their databases.

Reason to upgrade from 1st-gen iPad: It won't render documents as quickly, won't always show documents correctly on screen.

Trial presentation: TrialPad allows you to control what the jury sees on-screen, zoom in, highlight/point, redact.

For presentations, recommends Apple TV ($99). Sets up network between you and iPad. Present wirelessly with iPad.

Jury selection: JuryStar and iJury are more comprehensive, but more complicated. Tougher to use without help.

Jury selection: iJuror is solid, despite "Fisher-Price" design.

Document review: iDocument Review. Send to them for upload. Can create own codes. Likes the concept, but needs development.

TranscriptPad allows review and marking up depos as .txt files. Set up color codes for issues and highlight by code.

Deposition apps: Deponent has some preloaded Qs, allows you to customize and attach exhibits.

Apps to consider for calendar creation: Court Days Pro, DocketLaw. O'Connor's has a basic deadline calculator.

Goodreader is a good way of managing files on iPad. Can email attachments from app. Connects to Dropbox, etc.

Easiest way to get documents on iPad is synchronized file service such as Dropbox, Box, Sugarsync. "It's secure enough."

@TomMighell: iPad is a magical device (per Steve Jobs), but it can't change the facts.

I'm live tweeting @TomMighell's talk on iPad for litigators @theaustinbar. Using #ipad4litigators as a hashtag.

As discussed in an article I wrote for Texas Lawyer a while back, I've incorporated an iPad into my appellate practice for a couple of years now, and I can't imagine life without it. The only thing that comes close to the iPad's utility is the MacBook Air I picked up a few months ago and have hardly put down since.

Among other resources, lawyers using or considering the iPad should check out Tom's blog, Jeff Richardson's iPhone JD, and Frank King's recent Texas Bar Journal article.

Hedges and Hawthorne to Speak on New TAMES System

D. Todd Smith — Thu, 22 Mar 2012 06:50:29 -0600

On March 29, 2012, Fourteenth Court of Appeals Chief Justice Adele Hedges and Texas Supreme Court Clerk Blake Hawthorne will speak to the Austin Bar Civil Appellate Law Section on "The Texas Appeals Management and E-filing System: Making Our Appellate Courts More Efficient and Transparent." This talk goes along with an article Blake published in the most recent issue of The Appellate Advocate.

The Supreme Court's mandatory e-filing initiative has now been live for a year. Several intermediate appellate courts, including the Third Court of Appeals here in Austin, are following suit. The TAMES system will bridge the gaps between e-filing, the courts' internal case management systems, and online docketing. Don't miss what is sure to be an informative look at the future of Texas appellate practice.

This event will take place at noon at Green Pastures and has been approved for one hour of CLE credit. To guarantee your reservation, send a check for $20 payable to “Civil Appellate Section” to Matthew Ploeger, Vinson & Elkins LLP,2801 Via Fortuna, Suite 100, Austin, Texas 78746 by Monday, March 26, 2012.

An Evening with the Texas Supreme Court v.3.0

D. Todd Smith — Tue, 20 Mar 2012 07:23:04 -0600

In what has become a biennial event, the 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, April 26, 2012, from 4:30 to 7:00 p.m. at the InterContinental Stephen F. Austin Hotel here in Austin. CLE credit (1.5 hours, .50 ethics) has been approved.

The event will feature a panel discussion with Chief Justice Jefferson and Justices Hecht, Medina, Green, Johnson, Willett, and Lehrmann. A cocktail reception with the justices will follow.

Register by mailing a $25 check payable to “Civil Appellate Section" to Matthew Ploeger at Vinson & Elkins LLP, 2801 Via Fortuna, Suite 100, Austin, Texas 78746, no later than April 20, 2012. You may also reserve a space by emailing mploeger@velaw.com and paying $30 at the door.

This event was very well received when held in 2008 and 2010. As the current ABA Appellate Section Chair, it will be my privilege to serve as moderator this time around. We expect a lively and informative discussion and exchange of ideas from both sides of the bench. If you have topics you would like to see addressed or specific questions for the justices, please email them to me at todd@appealsplus.com.

3/21/12 Update: Justice Guzman will also be participating.

Follow-Up on Villarreal Argument

D. Todd Smith — Mon, 20 Feb 2012 10:20:10 -0600

To follow up on my last post, Texas Lawyer has run a front-page story on the Villarreal case. Access the article here or here.

SLG's Brandy Wingate to Argue at Texas Supreme Court

D. Todd Smith — Wed, 08 Feb 2012 22:12:25 -0600

After just over a year with my firm, Brandy Wingate has landed an oral argument at the Texas Supreme Court. The argument will take place at 9:00 a.m. tomorrow at the John B. Connally Center at the University of Texas School of Law here in Austin.

The case is Rio Grande Regional Hospital Inc. and Columbia Rio Grande Healthcare L.P. v. Diana Lopez Villarreal, et al. (No. 10-0927). The Court's staff attorney for public information has provided the following summary:

In this case alleging health care-liability claims resulting from a patient's suicide in a hospital, the principal issues are (1) whether the appeals court applied the wrong standard to review the jury's finding that the suicide was a foreseeable result of nurses' actions and omissions; (2) whether legally sufficient evidence established that the patient's suicide was foreseeable and nurses' actions and omissions constituted its cause in fact; and (3) whether the court of appeals erred by imposing on nurses a duty to diagnose a patient's psychiatric illness. Villarreal sued the hospital after her husband, admitted for severe headaches, fatigue and fainting spells, killed himself two days later by slashing his neck with a razor a nurse provided him for shaving. On his admission, he told doctors he was not depressed. Doctors prescribed an anti-anxiety drug and an antidepressant also used to treat anxiety. A jury found the hospital 75 percent negligent for the nurses' acts and omissions and Mrs. Villarreal 25 percent at fault for failing to disclose to disclose a suicide note her husband wrote and his complaints about his "deteriorating" mental state. The court of appeals affirmed the judgment based on the jury verdict, holding in part that proximate cause could be based on "general danger" or "some type of injury" reasonably foreseen by providing Mr. Villarreal the razor. The hospital argues that the standard should have been that the suicide was injury of a "general character" that the nurses should have reasonably anticipated.

Here are links to the parties' briefs and the Thirteenth Court of Appeals' opinion. The argument will be webcast live, courtesy of St. Mary's University School of Law.

Solo/Small Firm Section CLE Set for 2/23

D. Todd Smith — Wed, 01 Feb 2012 08:16:22 -0600

As immediate past chair of the Austin Bar Association Solo/Small Firm Section, my main responsibility is to organize and run a half-day CLE program the Section puts on each year. We have put together what I think will be an outstanding program that will educate attendees on a number of subjects relevant to solos and small firms.

Topics include advertising and barratry in the age of social media, office automation and the reduced-paper office, negotiating strategies and routes to conflict resolution, and practice management in tough economic times. Our speakers include sitting judges, bar officials, and experienced practitioners. The full schedule and speaker list is pasted below and is also available here.

We hope you'll join us on February 23!

2/3/12 Update: For anyone interested, the Twitter hashtag for this event is #SSFCLE.

2/10/12 Update: The final course brochure, with a registration form, is available here.

Austin Appellate Section to Host Chief Justices on January 19

D. Todd Smith — Fri, 13 Jan 2012 07:25:21 -0600

The Austin Bar Association's Civil Appellate Law Section will kick off the new year with a special program featuring chief justices from several of the fourteen intermediate state courts of appeals. The luncheon meeting, which will take place at noon on January 19, 2012 at Green Pastures, will include the following lineup:

Moderator:

Chief Justice Woodie Jones, Austin (pictured)

Panelists:

Chief Justice Terrie Livingston, Ft. Worth
Chief Justice Brian Quinn, Amarillo
Chief Justice Sherry Radack, Houston
Chief Justice Jim Worthen, Tyler

A number of chiefs from other courts are expected to attend as well.

As Section Chair, I am very excited about this event. The program will present a unique opportunity to hear the chiefs' views on current issues facing the courts and to visit with judges from around the state in an informal setting. Space is limited, so reserve your seat by sending Matthew Ploeger a check for $20 payable to "Civil Appellate Section" today.

If you have a topic you would like to see the panel address, please describe it in a comment to this post. I will collect and pass on the suggestions for the panel's consideration.

1/18/12 Update: Chief Justice Catherine Stone from San Antonio will substitute for Chief Justice Quinn.

Happy 2012!

D. Todd Smith — Sun, 01 Jan 2012 14:23:06 -0600

Ringing in the new year takes us to another milestone—the fifth anniversary of this blog's launch. Year-end has been a natural time to re-evaluate, re-assess, and plan for the next twelve months.

Last January 1, I announced that Brandy Wingate had joined my firm, @Smith Law Group, and we are enjoying what she has added to our practice. The firm is continuing to grow and change, so be on the lookout for some new announcements soon. One recent addition is a new Twitter feed, @AppellaTex, geared specifically to this blog and its focus on Texas civil appellate practice.

May you all have a very happy and blessed 2012!

SCOTX to Hold Hearing on Uniform E-Filing System

D. Todd Smith — Thu, 08 Dec 2011 08:34:12 -0600

This afternoon at 2:00, the Texas Supreme Court will hold a public hearing to explore the feasibility of a statewide uniform system for electronic court filings. The hearing will take place in the Supreme Court Courtroom and will be webcast live here.

The Court is considering whether Texas ought to implement a system modeled to some degree after Public Access to Court Electronic Records (PACER), the federal courts’ electronic document portal. In conjunction with the Case Management-Electronic Case Filing (CM-ECF) feature, PACER allows litigants to file documents electronically at no charge, 24 hours a day. Parties and the public may access the docket online and may view and download listed documents for a fee.

Followers of this blog know that I have advocated e-filing for years and have watched closely as our state e-filing processes have developed. Texas has made great strides in this area, but the current system is far from perfect. PACER/CM-ECF has its flaws too, but it has been implemented successfully in federal trial and appellate courts and provides a reference point to something other than the state courts' filing-fee driven model.

A system that is not fee-based at the filing stage would level the playing field for everyone with access to a computer and an internet connection, and a uniform approach to e-filing and online document access would be inherently valuable. We should applaud the Supreme Court for considering the need for and benefits of a uniform system and for taking the initiative to gather more information about the options going forward.

Must Attorney Fees Be Superseded on Appeal?

D. Todd Smith — Mon, 07 Nov 2011 09:16:50 -0600

A split is developing among the intermediate Texas appellate courts on an issue important to civil trial lawyers and their clients: whether attorney fees must be included in the amount of security a judgment debtor must post to prevent execution on the judgment pending appeal.

Under former Texas Rule of Appellate Procedure 24.2(a)(1), an appellant seeking to supersede a money judgment had to post security in “at least the amount of the judgment, interest for the estimated duration of the appeal, and costs.” House Bill 4, the 2003 tort-reform package, altered the amount of security required to supersede a money judgment by substituting “the amount of compensatory damages awarded in the judgment” for “the amount of the judgment.” The Texas Supreme Court amended Rule 24.2 accordingly.

Under the old rule, “the amount of the judgment” included not only actual or compensatory damages, but also any punitive or additional damages authorized by law. Most everyone agreed that HB4 removed these sorts of “noncompensatory” damages from what must be secured, making it easier for defendants to suspend money judgments on appeal. But questions arose about whether a judgment debtor needs to supersede attorney fees and other matters making up “the amount of the judgment,” yet arguably outside HB4’s “compensatory damages” standard. The fee issue is finally making its way up to the appellate courts.

Two decisions illustrate the emerging split. In Shook v. Walden, 304 S.W.3d 910 (Tex. App.—Austin 2010, order), the Third Court of Appeals relied on certain definitions that HB4 added to a different part of the CPRC to conclude that “compensatory damages” did not include attorney fees. In Fairways Offshore Exploration, Inc. v. Patterson Services, Inc., ___ S.W.3d ___, 2011 WL 2925910 (Tex. App.—Houston [1st Dist.] July 21, 2011, order), the First Court of Appeals declined to follow Shook, holding instead that attorney fees are “compensatory damages awarded in the judgment” that must be secured to suspend enforcement of a judgment pending appeal.

This topic is too complex to treat in depth here. For one thing, Shook has some nuances that might be read as imposing something less than an absolute rule excluding attorney fees from what must be superseded. I intend to write more about this issue and may put together a CLE presentation on it. In the meantime, practitioners on both sides of the docket need to be aware of the Shook-Fairways split and consider it in formulating postjudgment strategy.

What's New in Standards of Review

D. Todd Smith — Mon, 19 Sep 2011 07:00:36 -0600

Below are the slides from my talk on standards of review at the 25th Annual Advanced Civil Appellate Practice Course. This is an important but incredibly dense topic, and I only had 30 minutes to present it. I therefore focused on two things: (1) the abuse-of-discretion standard, which defies precise definition; and (2) legal sufficiency of the evidence after City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).

The slides provide some flavor, but my basic point on City of Keller was that appellate lawyers and courts are still trying to sort out what it means six years later. I wasn't alone in that view. The case was mentioned repeatedly during the seminar and was even described as the most important Texas Supreme Court decision from the past decade.

For fun, I'm also including @TexasBarCLE's tweets during my talk. It's true that, in a hotel ballroom packed with appellate lawyers, only one raised his hand.

Thanks to Brandy Wingate for letting me build on her work product in putting this presentation together.

Ethical Lapses in Motions for Rehearing

D. Todd Smith — Sun, 18 Sep 2011 07:55:07 -0600

Here is the second video from the "ethics intervention" presentation at the Advanced Appellate Seminar recently put on by the State Bar Appellate Section and TexasBarCLE, Houston appellate lawyer David Holman once again demonstrates some things counsel should not do, this time in the context of preparing and filing a motion for rehearing in the court of appeals. Russell Hollenbeck plays Holman's client.

The quotes from real-life motions for rehearing are priceless. They bring back memories of the famous motion for rehearing in which a lawyer labeled the Texas Supreme Court one of the "Four Horsemen of the Apocalypse" and called the justices "nine nutty professors." The lesson? Writing a "catharsis motion" might make you feel better, but filing one is usually a mistake.

How Not to Handle Oral Argument

D. Todd Smith — Fri, 16 Sep 2011 06:56:15 -0600

I recently promised a little humor, so here you go.

In this video, produced for the Advanced Appellate Seminar put on last week by the State Bar Appellate Section and TexasBarCLE, Houston appellate lawyer David Holman demonstrates a number of things counsel should not do during oral argument. The video was part of an "ethics intervention" in which Holman's colleagues Russell Hollenbeck and Daryl Moore expressed concern about Holman's "ethical lapses." Richard Hogan appears as Holman's opposing counsel in the video, which also features real-life Justices Martha Hill Jamison, Terry Jennings, and Sharon McCally.

Having this kind of material in a statewide CLE program shows why practicing appellate law in Texas is so special.

Within the next few days, I'll post a similar video addressing motions for rehearing.

Results of the Twitter Brief Contest

D. Todd Smith — Tue, 13 Sep 2011 06:28:00 -0600

As I wrote about here, the State Bar Appellate Section sponsored a Twitter brief contest in conjunction with the recent Advanced Civil Appellate Practice Course in Austin. The winners were announced during the Section's annual meeting.

The official PowerPoint containing the winning entries and several honorable mentions is embedded below for everyone's enjoyment.

I intend to put up a couple more follow-up posts about the conference over the next few days. At least one of them will further demonstrate that appellate lawyers can have fun, too.

SCOTX: Attorneys Must E-File Effective 9/12/11

D. Todd Smith — Mon, 15 Aug 2011 21:06:53 -0600

Texas appellate e-filing continues to evolve at a rapid pace. Effective September 12, 2011, attorneys filing documents in the Texas Supreme Court must do so electronically. Pro se parties may e-file, or they may submit paper documents.

View the Court's latest e-filing order here. Don Cruse has broken down the new order over at the Supreme Court of Texas Blog.

Aside from SCOTX, e-filing is available in the following state appellate courts: Austin, Dallas, Eastland (new as of August 8), Houston (1st District), and Houston (14th District). The Texarkana court may be next in line, as its website states that e-filing will be available there soon.

For background on this development, see the following posts:

When Will Appellate Courts Catch Up on E-Filing? (1/3/07)
Appellate Court E-Filing Becoming a Reality (2/15/10)
More on Appellate E-Filing (4/9/10)
At Last, E-Filing Is Coming to Texas Appellate Courts (3/3/11)
Texas Appellate E-Filing Goes Live (3/28/11)
The Adaptable (Appellate) Lawyer (6/28/11)

25th Annual Advanced Civil Appellate Practice Course

D. Todd Smith — Sat, 06 Aug 2011 15:27:57 -0600

The State Bar Appellate Section and Texas Bar CLE are co-sponsoring the 25th Annual Advanced Civil Appellate Practice Course, which will take place September 8-9, 2011 in Austin. Related events are the popular Civil Appellate Practice 101 course (formerly known as Appellate Boot Camp) on September 7 and the Section's annual meeting on September 8, to be followed by a cocktail reception. A registration brochure is available here.

This has been one of my favorite CLEs since I started attending in the 1990s. I'm even more biased this year because, in addition to serving on the planning committee, I will be speaking on a topic important to any appellate lawyer: standards of review.

And to show that the folks putting on this program don't take themselves too seriously, the Section is sponsoring a Twitter brief contest, the details of which are available through this link. Results will be announced at the seminar and via the Section's Twitter feed, @TexAppOrg.

8/17/11 Update: @TexasBarCLE is promoting the course on Twitter and has created an event page on Facebook. Follow the hashtags #TBCLEappellate and #140brief for up-to-date information about the seminar and the Twitter brief contest.

Networking Group for Appellate Lawyers and In-House Counsel

D. Todd Smith — Sun, 31 Jul 2011 18:34:42 -0600

After attempting to start some discussions on the LinkedIn Appellate Lawyer Network, I've concluded the group is useless. My posts aren't being accepted, and what's made the cut doesn't involve anything specific to appellate practice. In fact, the list seems like just another place for self-declared "marketing experts" or "social media gurus" to ply their wares.

So, I've decided to create a new LinkedIn group focused on creating legitimate networking opportunities for U.S. attorneys actually practicing appellate law. In keeping with that goal, I've named it the Appellate Lawyer Networking Group. To be eligible, a potential group member must be (1) a practicing appellate lawyer in a U.S. firm of any size, or (2) an in-house lawyer who is interested in appellate issues and could benefit from access to the group.

I know the trend favors "open" groups, but I think there would be value in a closed group allowing appellate lawyers and in-house counsel to exchange ideas and become more familiar with each other, free of the junk that comes through on other lists or overt sales pitches. If you agree and meet the criteria, please consider applying for membership in the new group.

Members, think of the group as a virtual water cooler for appellate lawyers. Discuss recent decisions you think are significant, cross-post from your appellate blogs, or ask questions of other experienced appellate lawyers. Announce your wins, new hires, or any career opportunities that may be of interest to the group. Let's harness the power of LinkedIn to facilitate relationships among appellate and in-house counsel nationwide.

Smith Elected Chair of Austin Bar Appellate Section

D. Todd Smith — Fri, 22 Jul 2011 11:34:11 -0600

D. Todd Smith (pictured), founder of the Smith Law Group, P.C., has been elected Chair of the Austin Bar Association Civil Appellate Law Section for 2011-12. Smith is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and focuses his practice on civil appeals and mandamus proceedings in Texas and federal courts. He also assists trial lawyers with dispositive motions and preserving error for appeal at the pretrial, trial, and post-trial stages.

The Austin Bar Association was founded in 1893 as a nonprofit professional organization for attorneys. Its mission is to promote professionalism and camaraderie within the legal community, to aid in the administration of justice, to enhance the delivery of and access to quality legal services, to educate the public about the legal system, and to actively participate in the success of the community at large.

Smith is heavily involved in the Austin Bar, having recently completed a term as Chair of the Solo/Small Firm Section. He has also accepted an appointment as Chair of the Austin Bar Membership Committee for 2011-12.

Reaching a Benchmark

D. Todd Smith — Tue, 12 Jul 2011 08:30:49 -0600

Today marks the fifth anniversary of my firm, the Smith Law Group.

On July 12, 2006, I left Fulbright & Jaworski to begin a new adventure as head of a civil appellate boutique. What began as a solo practice has grown to three people (me, Brandy Wingate, and our wonderful legal assistant, Sharon Kamus), and we have expanded our reach to cover all of Texas, the Third, Fifth, Seventh, and Tenth Circuits, and the Supreme Court of the United States.

Without the continued support of our clients, colleagues, followers, and friends, we would not be where we are today. We look forward to hearing from you and to continuing in our role as "The Right Addition to Your Trial Team."