APPEALS IN TEXAS

Do you need to appeal?  Did you lose a case at the district court or administrative agency level?

 Did you WIN a case and now the other side is appealing?

You need a lawyer who specializes in appellate law!

Why is appellate law different from “ordinary” litigation?

APPELLATE PROCEDURE

There are different rules for appeals.  They can be complicated – even lawyers can get trapped by some of them.  A lawyer who specializes in appeals knows the rules – and knows the exceptions to the rules!  If you want to know how long your case might take on appeal, check out my blog – http://www.popelawtx.com/blog/2012/03/how-long-will-it-take-to-get-a-decision-in-my-civil-appeal

The Texas Supreme Court and courts of appeals in Texas have now adopted rules that require the filing of electronic briefs.  The simplest form of electronic brief is not difficult to produce – it is simply a brief in PDF form.

However, the courts encourage lawyers to file a brief that goes beyond the simple brief.  They ask that the brief include hyperlinks to the cases cited in the brief and that the hyperlinked cases be included in the materials submitted to the court.  This means that an appeals judge can open a brief and click on the hyperlink, read the cited case, and then return to the brief.  This type of brief is much more difficult for the lawyer to produce.

BRIEFING

One of the main differences between trial litigation and appellate litigation is the audience.  Trial lawyers need to know how to address juries – ordinary people who usually know little to no law.  By contrast, appellate lawyers need to know how to communicate with appellate judges.  It is a totally different skill-set.

Probably the most important task in writing a brief is doing the research for the brief.  Appellate judges like to follow precedent – how was a similar case handled in the past?  Good appeal lawyers find cases that are similar and then craft arguments about why that case should be followed.  Sometimes, attorneys argue that the law needs to be changed, but that requires even more research.

After the research, writing the brief requires multiple skills.  The best briefs only have two or three main points.  The brief has to explain to the judges why they should rule in favor of the lawyer’s client.  A “brief” can be 50 pages long.  The best briefs not only present the law – they present the arguments in a sympathetic way so that the judges want to rule in the client’s favor.  Briefs should be written and re-written.  “The difference between the almost right word & the right word is really a large matter–it’s the difference between the lightning bug and the lightning.” – Mark Twain

It is also important to understand that the other side will also write a brief.  Thus, it is important to explain why their arguments should not be adopted and why their cases are different from the case the court is now considering.  Because of the page limits on briefs, it may not be possible to respond to every point.  The good appellate lawyer focuses on the key arguments made by the other side and responds to each of them.

Most people never see a legal brief.  Here is an electronic version of the brief I wrote that was filed at the United States Supreme Court.
Click to view the brief.

ORAL ARGUMENT

In most trial courtrooms, the lawyer gets to speak without much interruption.  It is rude (and sometimes legally incorrect) to interrupt another lawyer who is making an opening or closing statement to a jury.

That is absolutely not true on appeal.  On appeal, the lawyers address several judges.  The judges can ask any question at any time.  I have seen cases where the lawyer did not even get a chance to finish introducing himself before he started getting questions.

The best appellate lawyers welcome questions from the bench, because it shows that the judges have read the briefs and still need to know more about the case.

However, oral argument can be terrifying to the uninitiated.  Several judges may ask questions so quickly that the advocate has little time to respond to each one.  However, each question is critically important and must be addressed.

Appeal lawyers also need to listen to the questions that were asked of the other side.  It can be very effective advocacy if the lawyer for one side has a much better answer than the lawyer for the other side.

Judges try to pepper lawyers with hypothetical questions, because they want to understand the effect their ruling might have on other cases.  It is not enough to answer “those facts are not now before the court.”  An effective appeals lawyer has to be ready to suggest where the limits of the law are and explain to the judges why those limits make sense.

While the United States Supreme Court does not broadcast its oral arguments, the Texas Supreme Court does.  If you have a case that is heading for that court, I recommend watching the videos of arguments before that Court.  They can be found at: http://stmarytxlaw.mediasite.com/mediasite/Catalog/pages/catalog.aspx?catalogId=c7b36466-40e3-4d88-b90c-0761e609344e