TALP 22 | Family Law Cases

 

Family law appeals can be tricky because the legal standards differ from ordinary civil cases. Taking us into the appellate component of family law, Todd Smith and Jody Sanders interview Michelle O’Neil of O’Neil Wysocki Family Law to answer some questions about what makes family law appeals special. Michelle dives deep into some of her cases, helping us further understand temporary and final orders, abuse of discretion, and more. Michelle also talks about how COVID-19 has affected family law and the impact it is expected to have in the future.

Listen to the podcast here:

Appellate Review in Family Law Cases | Michelle O’Neil

We have with us a special guest, Michelle May O’Neil from Dallas. Welcome to the show.

Thanks for having me.

Anybody who is in the appellate world, I’m sure has heard of you or is aware of you in large part because you’re so visible. Why don’t you tell us a little bit about your background and what led you to your current practice?

I’ve been a lawyer for 28 years. I’m a Baylor grad. When I graduated from law school, I was 23. I went through Baylor on the 3-3 program, but I did it in 2.5-2.5. For some reason, I was in a super big hurry to get out of school. I regret that but in law school, I wasn’t a good student. I brought up the rear so that there was a top of the class, because you got to have a bottom to have a top. The only thing I excelled at or the thing I made the high A in was legal writing. As time went along, when I got out of law school, the economy was terrible. We were in a huge recession way back then. Lawyers were getting laid off right and left and everything.

I started my own firm. When I first started, I had barely turned 24. I started my own firm, hung out a shingle, signed a lease and bought a computer. Back then, computers were way different than they are now. I signed up on the court-appointed list. I had a real experienced paralegal in Bell County named Tudor Porter. She worked for one of the big criminal defense lawyers in town. She taught me how to go to the jail and how to negotiate a plea deal with the DA’s office. I did a lot of juvenile crime because I was 24 and I probably looked about twelve.

I still could speak to young people. I can’t speak to young people now, but back then I could explain the constitution to a twelve-year-old in a language they would understand. I did a lot of juvenile crime defense, but the only thing that would actually hire me was Family Law. I remember the first day when I had barely opened my practice, this guy walked in on a Friday afternoon, no appointment, and he had three $100 bills. He wanted me to write a letter about his child support to his ex’s lawyer or whatever. They were threatening him about something. It was one of those things. I don’t even remember the facts of what it was now but at the time it was like, “I know the answer to this. I know what to do about this.”

I took his $300 and I wrote a letter. I exchanged a couple of letters with this lawyer and solved this problem. After that, I was like, “This is something that might pay me money to do,” because I looked so young. Being female and being in solo practice, there was only so much business coming in my door. Between court-appointed criminal defense and then Family Law, that’s where I got my start. At some point in that process, the higher-end work took over the court-appointed work and I got to stop doing the court-appointed work. Family Law became my life.

It sounds like Family Law chose you.

That’s exactly how I say it. Whenever people ask me how I got into Family Law, I say, “Family Law chose me.” I don’t know that I was in law school at Baylor sitting around thinking, “I’m going to go divorce people for a living,” but that’s how it ended up.

You’ve been in some different firm practice settings. You’ve mentioned you started off as solo and then you built up from there. You then went into another firm and now you’re back in your own driver’s seat.

I started out in Bell County on my own and I practiced there for about 5.5 years. I got enough to sit for board certification during trials and stuff like that. I decided one day, do I want to be the fish in the small pond or do I want to go look for something more? I got offered a job in Dallas, not in Family Law. I took that but I was doing car wreck defense cases and insurance defense. I was like, “This is the same car wreck cases, the same strain every day.” That wasn’t doing it for me. I missed the excitement of Family Law. At that point, I got hired by, at the time, McCurley Kinser McCurley & Nelson, which then became McCurley Orsinger and now it’s Orsinger, Nelson, Downing.

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I had the honor and the privilege of being trained as a Family Lawyer by Mike McCurley, Kathy Kinser and then in the appellate world by Richard Orsinger. That pedigree for me was invaluable. Mike McCurley in particular and Richard as it relates to the appellate world. I would not be the lawyer I am if it weren’t for the experiences I had working for them. There were good days and bad days as there are at any firm but being able to listen to Richard Orsinger talk about strategies of how to craft a petition for review to the Texas Supreme Court and how he approaches argument, people don’t get that. In CLEs, he doesn’t share that stuff.

I remember there was one case. It was a big divorce case out in Tyler. It was set for trial and Richard was handling the appellate issues. I was assigned to draft Mike McCurley’s voir dire. We had this retreat over a weekend, which sounds fun going down to the Hill Country to Kerrville and having a retreat. Now, I understand it was designed to maximize our billable hours on this one case, getting us ready for trial. I spent an entire weekend in meetings with Mike and Richard preparing a voir dire. I learned so much in that about strategies of voir dire, trilogies, looping and all these things of how to win a case in voir dire. It was things like that that was invaluable that made me a great trial lawyer and that have made me a great appellate lawyer over the years of having that experience.

After several years in that firm, I decided that I wanted to be back out on my own. I started on my own and went to McCurley, and then decided to go back out on my own. I started a solo practice and did that for 11, 12 years and got a little bit frustrated with that. In solo practice, you feel like you’re Atlas with the weight of the world on your shoulders. I closed my solo practice and went to work for Godwin in Dallas, which is also a very infamous firm. I stayed there for about 10, maybe 11 months. There was some over-under on how long I would last in that. Some things shifted with the firm and some things shifted with me and I met Michael Wysocki. I’d had a trial court case against Michael Wysocki a couple of years prior. He and I fought like dogs and I won. That’s a very important part of the story that I won. I beat him. It was a hard-fought stressful situation, but then he was unhappy.

He was at McCurley at that point. Mike McCurley had just retired, so that firm was in a big shift also. He was wanting something more from his practice. We had coffee and had a few “professional dates” and decided that we approach life in a very similar way. We wanted to see what we could do together. That’s been five years ago that we started O’Neil Wysocki. I still do trial work. I’m pretty unique as an appellate lawyer that I still do both. I had the appellate efforts for the firm. I oversee strategy on cases. I help our young lawyers know how to preserve error and file summary judgments and all of that. The most fun part of our practice is when Michael and I get to try a jury trial together. That’s a lot of fun. Our styles are very different.

I can’t let it go by without mentioning how much I like your branding, the O’Neil Wysocki Lawyers with the image of the owl and ‘The Wise Choice.’ It’s brilliant.

Most of that was Michael. I like doing marketing and I do plenty of it. I’ve done plenty of it for years with my own blog and everything. When we were designing the firm, our logo design lady emailed me one day. She’s like, “Do you have the domain OWLawyers.com?” I’m like, “No. Why?” She’s like, “OWL,” and she had to spell it out for me. I’m like, “That’s brilliant.” I called Michael and I’m like, “Is this cheesy or is it brilliant?” He’s like, “It’s brilliant.” When he and she were collaborating on the design of our logo, she had an ornateness to it. He’s like, “Simple this down. Make it into a pencil thing and put the owl, then it’s an O and the W is hidden up in the owl wings.” It was the OWL firm from there. I get Facebook posts almost every week with somebody posting, “I saw an owl and thought of Michelle.” Everybody gives me owl presents. I showed you all my owl house slippers. It’s become quite the thing. Michael gets credit for that.

I know you’re also involved in social media. You were telling us you moderate a Facebook group for women lawyers. Talk a little bit about that.

Traci Ahart and I founded a group called #HellOnHeels on Facebook. We now have about 1,300 mostly Texas women lawyers, a few from out-of-state and a few non-lawyers. Our group is aimed at our heels. We talked a lot about shoes but a lot about positivity. We don’t talk cases in our group because we do have some judges that are members and several Court of Appeals justices. We’ve outlawed case discussions so that we don’t influence our judges. We talk about issues that are relevant to women lawyers and keep it positive.

You are unique in terms of the blend of your practice area. I don’t know too many. You mentioned Richard Orsinger. He’s very well-known as a Family Lawyer and Appellate lawyer. I know 1 or 2 others but not many who specialize in Family Law appeals. It seems like most that I know do something like what you do, which they will maintain a trial practice, too. This is the Texas Appellate Law Podcast, so the trial practice part is interesting and important. I want to ask you not only about your appellate experience, but the appellate component of your practice. I know what I do and I am not an expert in Family Law. To me, it’s intimidating if anything because I’m worried if I get into it and I feel like I don’t know what I’m doing and I’m going to screw something up.

That’s all right. You can send them all to me.

How are Family Law appeals different than ordinary appeals?

TALP 22 | Family Law Cases

Family Law Cases: As a trial lawyer, if you don’t do appellate work twenty days after judgment, you can mess some things up.

 

Our standard of review is a little bit different and a lot looser than what you experience most of the time in the civil world. The standard of review generally is the abuse of discretion. Most of our trials happen as bench trials. In the civil world, most of the final trials would be jury trials. You would have sufficiency analysis as part of your jury trial. You also have a requirement of motion for a new trial to preserve error. In the Family Law, where we have mostly bench trials, the abuse of discretion standard subsumes the sufficiency standard and broadens it. We don’t have to mandatory file motions for a new trial to preserve error. If you have a jury trial in Family Law, then that changes back to some of the civil standards that you are familiar with.

Interestingly, Texas is the only state in the country that allows jury trials in Family Law cases. That makes it even more unique as to my practice because our firm, Michael and I try many jury trials. That’s a very unique little thing to try jury trials, and then know how to appeal a Family Law jury trial because it flips back to some of those standards that you are familiar with in the civil world. There’s also a difference in the findings of facts. We know that there are the general findings of fact in the world of civil procedure. There are a couple of places in the family code that have specialized findings of facts that you can request and must request to preserve error. For example, if you’re appealing a property division in a divorce, you have to request specifically the Chapter 6 specialized findings on valuations in order to prove an abuse of discretion in the overall division of the estate.

If there’s a non-standard possession schedule, there are some specialized findings and child support. There used to be different deadlines for requesting all those. It was even worse, but they’ve stabilized that now. I had an appeal at one point that was pet denied by the Supreme Court, but we won at the Court of Appeals level. First, a case of first impression upholding a trial court setting aside a premarital agreement. There are very few of those cases in general in Texas because there’s such a presumption in favor of the premarital agreement, and then even fewer that go up on appeal. We had won at the Court of Appeals level upholding the trial court setting aside this prenup and pet denied at the Supreme Court.

The other attorney on the other side was a well-known civil appellate lawyer. They didn’t request their findings on the property division. It was a property division appeal. It’s the appellate lawyers’ worst nightmare. The Court of Appeals opinion says, “Waived there because you didn’t request the right findings of fact.” That’s a nightmare but that’s an example of why a general civil Appellate lawyer might not want to dabble in Family Law if you’re not super familiar with it. There are a lot of Family Law trial attorneys that don’t know how to properly request findings of fact. You don’t know how many appeals that I’ve had to tell the client, “I’m sorry but your chances of winning an appeal are even slimmer than would otherwise be because your time for requesting the findings of fact has passed.”

We didn’t request the specialized property valuation findings. We’re not going to be able to show reversible error in the overall division because of that. It makes me sad and annoyed that people don’t get appellate lawyers involved sooner in the process or consult, or even read an article. I’ve been writing on the different standards and the differences in Family Law appeals for 20 years. I had an article in the Appellate Section Newsletter 20 years ago on the different standards of review. It’s not hard to learn but, as a trial lawyer, if you don’t do appellate work, that twenty days after judgment, you can mess some things up.

Abuse of discretion standard tends to be tough. I know you mentioned that legal sufficiency has folded into it. I always thought that was a very interesting analytical framework.

It affects remedies because in Family Law, we mostly have remand and we have very few renders. I’ve got one on a child support issue that I’m going to file a motion for. In fact it’s due and I’ve got to write a motion for rehearing on a remedy question where they reverse the judgment of the trial court on abuse of discretion on the sufficiency of the evidence at trial and they’ve remanded it for a new trial. I’m like, “Wait, there ought to be a render.” They also offered remittitur and I’m like, “Really?” It was an attorney’s fee question where they flat out didn’t meet rohrmoos at all. They proved that a smidge of attorney’s fees is what the court found, but not the full amount of the judgment. The court offered remittitur to the smidge. The other side said, “No, we don’t want remittitur. We want a remand.” They’ve remanded it. I’m like, “If it’s legal sufficiency, it should be a render.” I’m in the middle of writing on that. That’s another example of how Family Law appeals are different. Our remedies mostly result back in the same trial judge’s lap that you weren’t happy with in the first place.

It seems like there’s a lot more opportunity for mandamus too because many things happen in the temporary orders that don’t happen in civil cases that are not appealable other than maybe a receivership.

There’s more opportunity now than there ever has been for mandamus. A few years ago, they started lightening the standards for mandamus. I was telling you my case that came out even further lightened the standards for mandamus, but we don’t have interlocutory appeals for the most part. There’s only one time in Family Law that you have an opportunity for interlocutory appeal, and that’s when a receiver is appointed. Otherwise, we don’t have interlocutory appeals like you do in the civil world. Mandamus is the only real remedy for a lot of the interim orders. It used to be that the standards were loosey-goosey. The standards for mandamus were tough and the standards for granting temporary orders were broad. It was very hard to prove a clear abuse of discretion. With the loosening of the mandamus standards and some of the statutes for temporary orders have been tightened a little bit, it’s created a lot more opportunity to seek remedies from the temporary orders on mandamus.

It’s interesting to me from the civil side of things how much goes on in temporary orders and how much effect that has on immediate property rights. In the civil case, so often whatever happens in the interim can be remedied by the time you get to the final judgment and all that, but that’s not true in Family Law.

There’s so much that happens at temporary orders, which occur in 2 to 4 weeks after the case is filed without discovery. You talk about old-school shooting from the hip kind of law. That’s like going back to the ‘70s and try cases. That’s how we do it mostly without discovery or whatever. Things that happen or the things that are set at that point dictates how the rest of the case goes on and that can be problematic.

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It seems like the Family Code overlay does add a level of complexity to it. You mentioned the part that had a special rule for findings of fact and conclusions of law. It seems like you have a lot of “final orders,” which as Jody was suggesting, we don’t truck along like that. It’s the interlocutory appeals under the mandamus but if not, we don’t have many final orders.

We still have one final judgment rule. It’s just that we have multiple proceedings that occur in one cause number. Maybe you start with a divorce, you get a final divorce decree. A year later, you might file a petition to modify, but that gets filed in the same cause number. We get a final order from that. Maybe somebody doesn’t pay their child support, you have a petition for enforcement. You get a final order from that. Sometimes enforcements then overlap with the other independent proceedings. Technically now, people mess this up all the time. Technically you then end up with two final orders occurring maybe at the same time, but they’re still independent proceedings.

That’s one of my pet peeves that a lot of times, Family Law judges and lawyers are a little loose with. It’s that idea of you have an independent petition and then everything that’s dependent on that. Sometimes we have two independent proceedings at the same time in the same cause number, but they should not end up in one judgment. Those should be two separate one final judgement because they’re separate appellate remedies. Enforcement is generally either habeas or mandamus where a modification or a final divorce would be a direct appeal. That’s another place where you can have that mishmash in Family Law that you don’t see in the civil world.

You mentioned your mandamus case briefly in front of the Supreme Court. You were one of the test subjects that had the Zoom arguments with the Supreme Court. How did that go?

It went fine. Everybody out there can go watch it on YouTube and judge it for themselves. We were set when the shutdown happened. I filed a motion asking the court to hurry up and clarify whether we were going or not because everybody was in chaos. They finally canceled it. When they decided to reset it in April, they gave us 2.5 weeks’ notice. I wasn’t expecting that. I was expecting months. I’m glad but I was disappointed not to be able to go to Austin. You can’t replace the experience of arguing in that big courtroom in Austin with the nine justices. It’s a great experience and I was sad not to get to do that. There were five cases that were argued virtually this term and we were the fourth one. It was very different.

I approached it a little bit differently than most of the others. I had a podium. I wanted to recreate how you feel when you’re in Austin like you’re at a podium, they are in front of you and you’re standing. I didn’t want to be seated for the argument. I feel like that euphemism of thinking on your feet is true. I wanted to be as alert and ready on the ball as I could be for their questions. There’s also a lag time especially with a couple of the justices. I think the Wi-Fi connections or something were a little slower. There was a little bit of lag time and a little bit of pixilation or something in the audio. That made it a little bit difficult. Sometimes the justices would try to ask questions over each other, which happens. That happens in person also. The lag time, the audio, and everything piled on top of it made it a little more difficult. They’d given each side five extra minutes to accommodate for that, which was nice.

When you look at the video, you see that I had my camera a little farther back and I had a podium. You could see me full length, more like you would if I was in Austin when they would record them on TV. In hindsight, was that a good idea? I don’t know. Everybody is accustomed to seeing it more like this but I didn’t feel comfortable with that. I wanted to have a little bit more real-world experience. It was unnerving. It was exciting to be one of the few, maybe one of the few ever. Who knows what’s going to happen? It was very exciting. Unfortunately, they decided the case against my position and reversed a twenty-year-old Texas Supreme Court case on mandamus, which I’m not sure how that works if the trial court followed the existing law, but then they reversed the law. We may have loosened the mandamus standards a little bit more.

There’s a case that was from 1976 that I don’t know that they’ve quite reversed it, but they’ve distinguished it mostly out of existence on the best interest standard. It’s a huge case. I don’t agree obviously because I argued the other side, but what do you do? We took the case knowing that as appellate lawyers we know it’s a mandamus of temporary orders. When I got in it at the Supreme Court level, they’d already asked for a response. They hadn’t asked for a full briefing, but they’d asked for a response. Right there as appellate lawyers, we know somebody up there has decided that this thing needs close inspection.

At the point that they asked for a response on a mandamus, your chances of winning went down. When they asked for full briefing, even more. When they asked for argument, you’re like, “My chances of winning this thing have been reduced to 9%, 10%.” We knew going into it that it was likely that they were going to significantly change the existing Family Law jurisprudence as to non-parent rights. I gave it as good a trial as it could have gotten. We did what we could.

That’s a huge challenge to commit to a case. You didn’t handle anything in the trial court. You didn’t handle it in the Court of Appeals. You come in and the petition has already been prepared and the response has been requested. Michelle comes in, hopefully, to save the day. The situation there though is you’ve got to work with what you’ve been given. Not all that are like what happens when you don’t handle anything to do at the trial court and you’re taking the case up on appeal, but that is a hard job to do.

We had the state bar Family Law section file an amicus in our favor and they still ruled against the section. There were nine amici on the other side. I had to ask some people to learn how to say that word because we never get amicus curiae in Family Law. There were nine right-wing conservative amici briefs filed on the other side of us. One of them is pretty ridiculous. You should go read it. It’s quite an interesting little read. We then had the State Bar Family Law section file one in our favor saying, how can you reverse twenty years of the existing law that the trial court followed on mandamus? Maybe we should wait until the final trial is over to look at this. They ignored my arguments and they ignored the amici’s arguments too.

TALP 22 | Family Law Cases

Family Law Cases: As appellate lawyers, we know when somebody up there has decided that this thing needs close inspection. At the point that they ask for a response on a mandamus, your chances of winning go down.

 

There’s nothing like abuse of discretion being found after the fact. Changing the law out from under the trial court.

That’s what I mean. They’ve reversed not only a Supreme Court case on point, they reversed at least a handful, if not in the final analysis, more than a handful of Court of Appeals cases on point that had interpreted everything. There was one Court of Appeals case square on the facts of this case. They reversed that and it was a direct precedent. It was out of the Fort Worth Court of Appeals, which is where this case came from and they reversed that. I’m still a little puzzled about how you apply mandamus standard to that. I feel like, in the analysis of this as we go along and analyze this opinion, we may have seen even a greater loosening of mandamus standard than we may have seen in the past few years. We’re at that point where we know a mandamus when we see it.

It seems like the word, clear, has been dropped from abuse of discretion. It used to be a clear abuse of discretion. Now you look at some of these cases and it’s just an abuse of discretion, which may simply be the way that they write the opinion. I wonder if that’s a practical change to the standard.

They still say clear abuse of discretion but how is the abuse of discretion any different than a clear? I don’t know. Where is the adequate remedy by appeal? Where did that go? Where is following precedent? If the trial court followed precedent, how did they abuse their discretion clear or otherwise, clear or unclear? I feel like we’ve entered this phase of mandamus where if the court likes the issue or it’s interesting or they don’t like the way things have been going on that issue, then all of a sudden, it’s a clear abuse of discretion that has no adequate remedy at law. I feel like we don’t have a standard anymore.

I remember the fight at the Supreme Court over this many years ago when they started opening mandamus practice up. It was a hot fight between all the justices as to how far they were going to let it go. It felt like we’d reached the high-water mark and gone back down. It sounds like it may be moving back in that direction.

I thought I would at least draw a dissent on that issue, but they issued a unanimous opinion on my case, so I don’t know.

The issue there too, and I’m sure you experienced this in your case, is the Supreme Court has the prerogative to change the law if it wants to. The issue that I wonder if the courts think about very much is how are you, Michelle O’Neil, sitting in your office in Dallas supposed to advise your client on this? You’ve got the black letter law that you can show the client and say, “This is why we should win.” The other side is arguing I suppose for a change in the law and we don’t know what’s going to happen.

The other side argued that the US Supreme Court case of Troxel overrode the Texas Supreme Court case. Troxel was so vague and it was a plurality that most courts have been hesitant to go all-in on Troxel, but then I guess they did. It’s tough to know how to tell a client what to do. In this particular situation, the twenty-year-old case that they reversed, they implored the legislature to address the issue. The legislature never did. It was like, “You need to deal with this,” and twenty years later, nobody dealt with it. They’re like, “Fine, we will. If you don’t like it, go legislate it.”

I guess we’ll see some legislation being introduced in the next session addressing this likely.

We’re considering whether to file in DC. If it were a final trial issue, it’s square in the middle of some of the dissents in Troxel, and some of the opining about the constitutional dimensions of the best interest standard. I wrote a post-submission brief on the constitutional dimensions of the best interest standard as it relates to this issue. Their decision was a dismissal of my argument and they redefined the best interest standard in the opinion. It puts it square in the middle of Troxel and some of the concerns that were raised in the dissents in Troxel. I don’t know that the Supreme Court in DC will take it up on mandamus.

I think that there’s such a little chance anyway of them taking it, but in this situation where it’s procedurally not perfect, I don’t know that it has a chance of being taken. I’m talking to the client about whether he’ll authorize us to go ahead and file it. The other side in our case, they’d already said if they lost, they were going to DC. I doubted when they said it and I doubt it when I say it that the Supreme Court will get super interested in a mandamus of temporary orders. I didn’t think the Texas Supreme Court would be interested in it, so here we are.

Family law appeals are still the stepchild of the appellate world. Click To Tweet

With all the COVID and stay at home stuff, I’ve heard some people say that when all this has loosened up and things do start to open up, they’re anticipating an uptake in Family Law cases. Have you been seeing that since Texas has opened up a little bit?

Divorce work is fairly recession-proof anyway. We never saw much of a decline. The courts have said they saw about a 10% decline in hearings and new filings. That might be somewhere close to what we’ve seen. We haven’t experienced much of a decline in business since COVID started. We have seen a definite uptick of business in a weird way. Normally the summer months, June and July especially are super slow in our cyclical process because everybody goes on vacation in July. They don’t want to get a divorce while the kids are home. Usually, January and August are our busiest months and it’s cyclical from there. We have not seen that normal downturn in business in the summer.

What we’re seeing, with all the public schools announcing this choice thing of you can choose to do virtually at home or you can choose for your kids to go in person at school. Everybody that has kids are like, “We got a choice.” Family lawyers look at that a little bit differently because everybody that we’ve been divorcing for the last few years has joint custody and shared decision-making. They have a joint right to make education decisions. What happens when one parent thinks, “We should keep our kids at home and protect them, not go out in public and not go around other kids. We’re going to homeschool.” The other parent says, “You’re a terrible homeschooler. We’re going to send our kids to school,” and they can’t reach a decision.

For Family Lawyers, it means business. We’ve already seen the very beginnings of litigation over education decisions. I sent my staff an email last week, educating the first responders of the phone calls that this is coming. This onslaught of dispute is coming. Here’s the thing, and this may be getting too in the weeds of Family Law, but in a modification, education decision is one of those decision makings that is in line with primary custody. I won an appeal out of Fort Worth a couple of years ago where they put education decisions in line with primary custody decisions. It invokes some of the special provisions about the high burden to modify on temporary orders for an education decision. There’s probably a higher standard to modify these education decisions that these people that have shared decision making, there’s a potential of some disagreements. We do see that coming. There’s also the togetherness problem that if your marriage was on the rocks before COVID or if there were some fissures in the strength of it before COVID, certainly a lot of togetherness is probably not good for it. We still anticipate an uptick in divorces. I don’t even think we’ve seen the beginning of that happening yet.

I supposed with that uptick both on the educational front and on the divorce front, you can probably expect a similar proportionate increase in appellate matters to come out of that.

Family Law appeals are still the stepchild of the appellate world. A lot of the justices still come from the criminal and civil world. Having two Family Lawyers on the Supreme Court has helped that some. There’s still a little bit of disinterest in Family Law appeals. It’s not as much of it as I wish it were. There’s always potential, especially when you start applying the modification of temporary order standards. That’s a place where I have done and there have been a lot of mandamus done statewide on judges that misapply that standard. Modification of temporary orders is a hot area in family law appeals, then non-parent standing custody, all of that is a real hot issue. That’s hitting square in our little hot issues so we’ll see. I’m happy for anybody who feels like they need a mandamus to call me.

If you look at Texas Supreme Court orders, the orders that came out if you happen to take a peek at them, it looked like to me from the styles of the cases that they are loaded with Family Law cases. These are all denials. That fits your observation there, Michelle, about the courts not expressing tons of interest in them, but I see the sheer volume.

You also have to remember those styles of the case may be CPS cases and they may also be juvenile cases. It’s not necessarily the style. It could be Family Law, but it also could be some of the ancillary type Family Law stuff that also gets taken up.

Michelle, we want to be respectful of your time. We always like to let our guests close with either a tip or a war story. Do you have one that you’d like to share with us?

My tip, which we’ve already pretty much covered, is if you’re a civil appellate lawyer out there and you get a Family Law case in your lap, do your homework or refer it out. There are several landmines in Family Law appeals that are out there. I told you the war story about the waiver issue, which is all of our worst nightmares. It’s also should be the worst nightmare for trial lawyers. For an appellate lawyer to have that opinion say that the appellate lawyer didn’t do something right is just, “Oh.”

The other issue is the virtual arguments. It’s a weird little thing and we may see a resurgence of that in the fall if the pandemic continues. I would say in preparation for a virtual argument, test your equipment. I did mine at my office where we had it hardwired into our internet connection so that we aren’t on Wi-Fi. We didn’t have to worry about if I’m at home and the lawnmower guy showing up on that very moment at that very day to mow the grass outside, or the Wi-Fi being sketchy or whatever. If you’re in that situation where you’re having to do a virtual argument, you need to be hardwired in and test your equipment. I had a new computer with a new video card installed and got a new camera for that argument.

TALP 22 | Family Law Cases

Family Law Cases: If you’re a civil appellate lawyer out there and you get a family law case in your lap, do your homework or refer it out.

 

We were on the very beginnings of all the virtual hearings and stuff. We were learning the differences in video card can make. I don’t even know what a video card is but my computer guy’s like, “You’re pixelated because your video card isn’t great.” I’m like, “Fix it.” The audio equipment is super important. That’s a place where you can have a lot of echo, vibration, feedback or something that can affect. All of those little things go to your persuasiveness. How do you convert what we are normally used to as in-person persuasion in an appellate argument to a virtual setting? It’s the same but it’s different. You aren’t necessarily looking them straight in the eyes. It’s not the same energy or the same experience. You have to be a little bit different.

In my criticism of my argument, I tend to be very focused and into it. I think I should have smiled more. Who thinks of smiling when you’re in Austin at the podium? You’re not standing there thinking, “Michelle, you should look more pleasant.” I was so focused. I think I squint when I’m focused. When you’re like this on video, that’s a big deal. If you look like you’re frowning, that’s a big deal in your ability to be persuasive. It’s little things like that that you don’t necessarily think about. In-person, we’re thinking about, is our suit ironed, do I have on the right shoes? That’s a woman thing. Justice Goodman is going to check out my shoes, plus I’m known for my shoes with Hell on Heels. Those are the things you think about in-person and having it all memorized. On virtual, you can have your notes out in front of you and you can look at it. At one point during the argument, they were asking me a question about statute. I had the statute right there. At the podium in Austin, you don’t get that desk space. It’s a little bit different, but I think the equipment, testing the equipment, the strength of your internet connection, that can’t be replaced. Don’t do it on Wi-Fi.

Those are all great points. We appreciate you taking the time to come on the show and offer some tips. I’m afraid that what’s happened is you’ve confirmed a lot of my concerns about appeals. It’s super helpful to have someone who knows and explain this is not something that you just want to dabble in. It can be dangerous. If people take nothing else away from this episode than that, we would have definitely served our purpose.

We’ve done a service for sure.

I’m here. If you get one of those, call me. I’ve got at least four of my eleven lawyers that are experienced in appeals. We’ve got varying rates that we charge for varying different experience levels. We can handle a large variety of appellate work. We don’t do the CPS appeals because those are accelerated deadlines and different standards, too. CPS appeals or in termination cases are even a more specialized area that we don’t touch because of the accelerated deadlines. Family Law generally, that’s what we do.

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About Michelle O’Neil

TALP 22 | Family Law Cases

Michelle May O’Neil has more than 25 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals.

One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification for 20 years since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.