TALP 10 | Verdict Reversals

 

Good appellate lawyers get real with their clients about their chances of success on appeal. Each case is different, and in practice, all appellate lawyers can really do is estimate. But what if their estimates are grounded on carefully collected and analyzed empirical data? Kent Rutter and the team at Haynes and Boone, LLP curate a study allowing just that. Kent joins Todd Smith and Jody Sanders to discuss the article he co-authored for the Houston Law Review entitled “Reasons for Reversal in the Texas Court of Appeals.” Having been through with three editions of the article, Kent is well-versed in the patterns observable from court of appeals decisions—information that can prove very valuable for litigants and their lawyers who want to know their real chances of reversal or affirmance.

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Court of Appeals Reversals by the Numbers | Kent Rutter

We have as our guest Kent Rutter. Kent is a partner at Haynes and Boone and he’s a very experienced appellate practitioner, bar leader, author, and CLE speaker. Does that pretty much cover it, Kent?

You’re very kind. Thanks for having me.

I’ve known you for quite some time. I’ve been involved in some of the same organizations that you have. My path in those organizations has turned out a little differently than yours. If I understand correctly, you’re the current Chair of the State Bar Appellate Section.

Right.

I mentioned you’re a partner at Haynes and Boone. How long have you been at Haynes and Boone?

My entire career, I was there. My 2L summer in law school and I’ve been there ever since then. So I am in my 24th year with Haynes and Boone.

You look way too young to be 24 years in one place. That’s my perspective. Everyone looks young to me these days. Tell us what led you to Haynes and Boone? Where did you go to school? Where did you grow up? How did you wind up at Haynes and Boone?

I grew up mostly in a small-ish town in the Midwest called Normal, Illinois. I didn’t have any lawyers in my family, but my mom, before she retired, worked for the office of the State of Illinois that published the official court reporters for the Illinois appellate courts. Even though she didn’t have a law degree, her job was to be an editor of opinions before they were issued. The appellate courts in Illinois would send their draft opinions to this office and my mom and other people there, would mark them up and say, “This sentence isn’t grammatically correct,” “This logic doesn’t seem to flow.” They would send them back to the author and the author could choose to accept or reject the changes and then they’d be published in the official reporter. I thought that was a cool job and that’s how I first got the idea of appellate practice in my head.

You probably could all take a page from that book and have somebody who’s not a lawyer read our briefing and make sure it actually makes sense and the logic follows.

I think it helps. She did that for many years and because she read about every opinion issued by every Court of Appeals in the State of Illinois, she was a walking encyclopedia of Illinois law.

How did you get to Haynes and Boone?

In law school, we had our first year in research and writing class and everyone in my group just absolutely hated it and I thought it was the greatest thing. We got to write a brief and I won the award for the best brief and I thought, “This is great. I need to do something like this for a living.” I read a lot of legal publications on Westlaw and figured out that Texas would be a good place to start a career as an appellate lawyer. I read about Lynne Liberato in some of these articles and I thought, “I’d like to work with her.” I was lucky enough to get a job there with my 2L summer of 1995.

We can come up with all sorts of empirical numbers to show what is and isn't likely to lead to reversal in the court of appeals. Click To Tweet

Tell us about your practice. I know we generally invite folks on the show who have a connection to Texas appellate law and we’ve already touched upon the fact that you do, what do you do day-in, day-out in your practice at Haynes and Boone?

One of the things that drew me to Haynes and Boone is that it was at the time, and to an extent still is, a very rare example of an appellate boutique within the context of a large firm. Haynes and Boone currently has seven full-time appellate lawyers in Houston, about twenty full-time appellate lawyers across the firm. We are sometimes working with our own litigators, but for the most part, the cases that I handle on appeal for the trial lawyers I work with come from trial counsel who are outside my firm. Even more than most appellate lawyers, I get to do a little bit of everything. The three cases on my front burner right now involved a commercial lending dispute, a train crash, and a plane crash. It’s a little bit of everything, and I love that about my practice.

That’s an incredible side as practice group in this day and age. From having observed the market, I don’t want to call Haynes and Boone an outlier, but it seems like most of the bigger firms have trimmed away at the size of their appellate practice groups over the last 10 or 15 years. You all are twenty-something lawyers across the firm. That’s incredible.

It’s remarkable and it speaks volumes to the founders of our appellate group that they were able to establish our group and maintain it through all of these years. It’s nice to have other appellate lawyers down the hall that I can bounce ideas off of. Lynne, Mark Trachtenberg, Christina Crozier, Polly Fohn and be able to do that, but also to have the resources of a larger firm. It’s been a good fit for me.

We also mentioned briefly that you were the Chair of the Appellate Section of the State Bar. Do you want to talk to us a little about what’s going on with that and how that impacts your practice?

Both of you have labored in the trenches of the State Bar Appellate Section for many years together. I can’t remember exactly what years you all got involved. I think mine, I got involved in 2008 when the Chair at the time, Judge Gerald Moore, more or less volunteered me to help the section conduct a survey of the appellate judiciary to ask them about their preferences, likes, dislikes with Scott Rothenberg and JoAnn Storey. Essentially, they provided the wisdom behind the survey and I was the IT guy who knew how to do an online survey and we did that survey. The first time was published in 2010, the second time in 2015, and the third version of the survey in 2020.

Ever since then, for the last 12 years, I’ve served in a number of roles and had the chance to work with both of you, among other people. It’s a wonderful group. I love the State Bar Appellate Section. We’ve moved into large section territory. We have more than 2,000 members, 26 active committees and a roster of about 75 appellate lawyers and judges who are, at any given time, actively involved either as an officer, a council member, or doing work on one of those committees. It’s a big effort and a lot of smart, good people doing a lot of good work all around the state.

Since we’re talking about the State Bar Section, I’m going to go ahead and put a plugin for the Appellate Advocate. I’m one of the co-managing editors. It’s a great publication and it’s a benefit that you get if you join the State Bar Appellate Section for $25. You get that. It is published usually quarterly, depending on the editors. I take the blame for some that didn’t make it quarterly, but it’s full of great stuff, lead articles. It’s got summaries from all the relevant courts of appeals, both federal and state that are in Texas. It’s got all kinds of awesome features and good stuff in there. There are some other benefits. I don’t want to put you on the spot, but I know I saw an ad about the forums that are available on the section website. I know that there’s free online CLE and some other stuff that you get for $25 a year.

I thought you are an Advocate editor as well, right?

In fact, I was the last editor of the non-digital version. After I wrapped up, I handed the reigns off to Dylan Drummond and Brandy Voss. Dylan may have had a lot to do with taking the publication digital, although there was some movement even back at that time, going on 10 years ago now. That was a great experience for me. I first got involved with the Appellate Advocate in the Appellate Section, I was a younger lawyer trying to get in and start getting to know people. My experience with the section is like yours, Kent. I made so many friends working with that group, people who are friends to this day, and people who show up opposite me in cases. We have a great time being against each other. I’ve not been involved in the Section for quite a while and I miss it because there’s a lot of camaraderie that comes out of that group.

TALP 10 | Verdict Reversals

Reasons for Reversal: With the kind of data we now have, we can talk about how the courts of appeals have evolved over the last twenty years or so.

 

I’m happy to hear you say that. I feel that the bar work I’ve done with the Appellate Section, it’s made me a better appellate lawyer. I know it’s absolutely made me a happier appellate lawyer just being plugged into a community of people who have the same interests, the same nerdy tendencies that I do. It was an awesome group of people. I’d like to point out to people that the membership is $25 a year. One of the benefits that you get is $50 off of the Advanced Appellate Course. It’s like when oil went below $0 a barrel, that’s where the Appellate Section is. It’s like we pay you to join. It’s the benefits of course in Advanced Appellate, which we help plan. There’s the Appellate Advocate, which is an important channel for appellate practitioners to keep up with in Texas.

Members can access free online CLE, which is even more important these days than ever to meet your CLE requirements. This is top-notch CLE. The offerings include, currently, presentations by several of the justices on the Texas Supreme Court. I believe Justice Hecht, Justice Busby and Justice Blacklock are all presenters of some of our current online CLE offerings. When you watch them, then you can report it for MCLE credits. A number of the offerings qualify for ethics credit as well, so that’s a big one. We also host various social events with courts of appeals. We’ve done them with most of the courts of appeals around the states. It’s a good opportunity for practitioners to get to know their appellate judges in a less terrifying setting than the oral argument. The list goes on and on and so many opportunities to do good work.

A lot of people don’t know that the section essentially operates the Pro Bono Programs for a number of the courts of appeals around the states. I’m proud of the work that we’ve been doing on diversity, that the appellates are, in Texas has a huge challenge when it comes to diversity. Our section is trying to do something about that, including focusing on the pipeline for future appellate practitioners in the law schools. Ther’s just a lot of good work and a lot of good people doing that work. I would encourage everyone who’s interested in getting involved to drop me a line. We always have work to be done on committees and we’d love to get people involved.

I can vouch for the organization being a great way for someone who’s interested in appellate practice and wants to make it their practice. It’s a great way to get plugged into that and meet so many people that you wouldn’t otherwise. That’s great to hear. You mentioned the Pro Bono Program. We’re probably going to need to do a whole episode on the Pro Bono Program. We’ll probably wind up doing that because it’s worth spending some time exploring in-depth as far as how that works and the benefits that it brings to young lawyers who are trying to get oral argument experience, for example. Let’s turn to the new article. It’s not really new. It’s updated, right?

This is the third edition. We’ve done this article three times, Reasons for Reversal. One of the nice things about that is we can now talk about how the courts of appeals are evolving over the last twenty years or so. For older folks like me, that’s a topic of interest, but it’s always useful for everyone to have a snapshot showing objectively and empirically what’s going on in the courts of appeals.

This was quite an undertaking. Do you feel like your mom, having read every published appellate opinion in the State of Texas over a period of time?

I can say we become our parents.

Just so everyone can find it, the law review article version of this is published in the Houston Law Review. It looks like it’s a volume 57 of the Houston Law Review in 2020. You’ve been doing some CLE speaking on this though, so there are some other versions out on Texas Bar CLE. It covers the same ground.

In a CLE presentation, we have a very narrow slice of the complete study in any given CLE presentation. For example, we presented it from an appellate standpoint at Advanced Appellate. I’ll speak to different groups along with my co-author Natasha Breaux or sometimes with a member of the judiciary focusing on a particular type of case. For example, tort cases or a particular Court of Appeals. So I was up in Fort Worth and Justice Kerr and I gave a presentation that focused specifically on the Court of Appeals. For me, I always find it terrifically interesting to hear straight from someone on the court why the reversals look like they do.

They don’t know why, they just decided the cases. That was Justice Kerr’s point, is she just decided the cases the way that she does and she was interested to see how they came out.

Absolutely.

New justices are much less likely to set aside a jury verdict regardless of the type of case or who prevailed. Click To Tweet

I think you described it as a study and the other word that popped into my brain is data. Other than what we see out of the Office of Court Administration, which you guys go far beyond, and you look at the data coming out on the courts of appeals in a much different way than what the OCA data shows. The idea of a study or data that are coming out on an appellate issue is interesting. Can you tell us a little about the methodology that you all used and coming up with the data that you relied on in preparing the article?

The first step is to get our hands on every single civil appeal that’s decided by the fourteen intermediate courts of appeals during a court fiscal year, which runs from September 1st through August 31st. Over the course of the year, we read each of those opinions, and the way it works is we have an Excel spreadsheet that we categorize the opinion according to what court it was, whether it was a firm to reverse, what type of case it was. In other words, was it a PI case? Was it a business toward a contract? Insurance coverage, etc.? We also track how it was decided by the trial court. In other words, was it a jury trial, a bench trial, a summary judgment?

Some combination of those, a special appearance to plea the jurisdiction and arbitration, etc. When we’re done, we have a spreadsheet with about 1,800 cases on it that we can then sort in a bunch of different ways to slice and dice the data and answer very specific questions like, “What is the reversal rate in the First Court of Appeals for summary judgments in contract cases?” When we look at the reversals, we can answer questions like, “When there’s a reversal of a jury verdict, is it more frequent that the verdict will get set aside based on the insufficiency of the evidence or because there was an error in the jury charge,” and questions like that. We can come up with all sorts of empirical numbers to show what is and isn’t likely to lead to reversal in the courts of appeals. Some of it confirms what appellate practitioners already know, but trial counsel often don’t. Some of it comes out of the blue and it’s a surprise to everyone and that’s the fun stuff for us.

You did the cases from August of 2018 to August of 2019.

This turned out to be an odd year because when we started doing this, we had no idea when we started doing this on September 1st of 2018 that the courts of appeals in Austin, Dallas, and the First and Fourteenth in Houston were all going to go from being all Republican courts to majority Democratic courts. When we were a third of the way through our survey year, at least I did not know that was going to happen when we started the court year. It turned out to be exceptional and an interesting year to study.

I know that you mentioned briefly at the Advanced Appellate CLE that you all were still digesting some of that. Going back and looking at the data, were you able to pick out any trends as those courts that turned over or anything of note, or is it still just not enough data to come up with conclusions about how the turnover might’ve affected reversal rates?

When I talk about the turnover, I try to be careful to sound a note of caution that even though those are big courts, there are lots of appeals both in the period before the turnover and the period after the turnover. You’re still looking at relatively short periods of time. Four months before the turnover and eight months after the turnover. Whether the data that we have is indicative of what these courts are going to do going forward, maybe it’s a perfect indication, maybe it’s not, but I do think that there are some interesting lessons. One, I think it’s clear that at least in the year that we studied, there’s no doubt that in tort cases, plaintiffs did much better on appeal after January of 2020 when the new courts took effect. What we’ve been able to do after we had some time to dig into the data is to figure out why that is.

To me, there were a couple of interesting lessons. The first is that when we dug through the data, it became clear to me that it’s not as simple as saying, “Democratic judges prefer to rule in favor of plaintiffs,” and “Republican judges prefer to rule in favor of defendants.” When you look at the data, what’s actually going on is that the new justices are much less likely to set aside a jury verdict regardless of what the type of case is, regardless of who prevailed. What you’re seeing is a difference in philosophy that’s procedurally related, not related to the nature of who the party is, whether they’re a plaintiff, defendant, an individual, or a corporation.

I also learned an interesting lesson in Fort Worth that one of the surprising statistics originally when we did the study. It’s great fun when Natasha and I are running the data at the very end, and one of us will run into the other one’s office and say, “Can you believe what this reversal rate is?” I’m not sure what that says about us, but this is one that stood out to us was that around the state, the Court of Appeals that is least likely to reverse a summary judgment is the Thirteenth Court of Appeals in Corpus Christi. The Court of Appeals that is most likely to reverse a summary judgment is the Second Court of Appeals in Fort Worth. If your assumption is that Democrats are hostile to summary judgments and Republicans like summary judgments, that throws a big question.

This is when Natasha and I like to put on our detective hats and get our magnifying glasses and try to figure out what it is. Where my mind went was, “Maybe this isn’t a reflection on the partisanship of the appellate judges, but maybe it’s a reflection on the partisanship of the trial judges. Maybe if trial judges in the Valley don’t grant many summary judgments and they only grant a summary judgment to put extremely weak cases out of their misery, then it might make sense that those summary judgments are rarely getting reversed. The opposite could be true in Fort Worth.” We dug into the trial court data, which we can do thanks to the OCA. It turns out that, “No. Actually, judges in the Valley grant summary judgments about as often as judges in Fort Worth.”

TALP 10 | Verdict Reversals

Reasons for Reversal: Elections do make a difference, but when you dig into the numbers, they don’t always make a difference in the ways that those who think in political terms might expect.

 

I was stumped. I could not find my partisan explanation. I was speaking to a group of plaintiff’s lawyers in Fort Worth and I asked them what they thought the answer was. They looked at me like I was crazy to ask the question. Finally, one of them said, “They’re Republicans, but they’re perfectly capable of recognizing a fact issue when they see one.” That’s absolutely right. One of the lessons of this study is certainly the study shows that elections do make a difference, but when you dig into the numbers, they don’t always make a difference in the ways you expect or for the reasons, those of us who think in political terms might expect.

Another lesson that I’m hearing is that people who are seeking summary judgment in Fort Worth would consult a Fort Worth appellate lawyer and hire them to help out with their briefing. I feel like that’s probably a good lesson to take from this.

Justice Kerr made that exact point.

We don’t think that that’s limited to Fort Worth by any means.

Not at all. Since we’re talking about the Fort Worth court, I’ll just throw that out there. It’s a tip.

In my practice overall, I distill clients’ questions down to three basic questions when they’re coming in and talking to me about the possible appeal. One is, how much is this going to cost me? The second is how long is it going to take? The third is, what are my chances? To me, this article helps peel the layers back on what the chances are. You have to be careful in advising clients. I always preface it by saying, “The statistics are this.” The article is because you can distill these patterns out, you can’t help but use it as a predictive tool to some degree. Going on within the walls of Haynes and Boone, are you all giving a copy of this to your clients and saying, “This is what we think,” “This is what we observe,” “In your case, this is where you fall?” You’ve done a tremendous amount of work here. It’s fascinating the load of work to distill these patterns out. It seems like the real value is in being able to use it for that purpose to advise clients about how to go about their appeal or whether to appeal of their particular case.

That’s one of the main reasons to refer to this article and I certainly use it in that way. In fact one of the things that I’ve told Haynes and Boone is that I’m going to spend many hours working on this study instead of billing time, but one of the advantages is that not all of the data can be squeezed into a law review article. We do have the advantage that we have the entire set of data and we can run even more granular findings than you could find in the law review article. For anyone, I think we all have the experience where in that initial phone conversation, when someone calls you up and they say, “What are my chances?” To me, the way to use this article, I don’t think it provides the complete answer, but it provides a starting point.

You can say, “This is what the reversal rate seems to be in similar types of cases and then after looking at the record, I think the chances in this appeal are hopefully higher or perhaps lower for these reasons.” In my experience, clients understand that you can’t predict the future, but they like to know that there’s something underlying your estimate. Other than that we’ve handled a lot of appeals and we have a good feeling or maybe a bad feeling about this particular one. They like to know if there’s a little bit of objective data going into the analysis.

I like having your article and I also find myself using Pam Baron’s Texas Supreme Court Statistics very much in the same way that, “In a typical case, this is what the numbers tell us.” “Here’s where your case falls on the spectrum,” or “Here are good things about your case,” “Here’s bad things about your case,” “Here’s what sets it apart here or there.” You’re right. You always get the handicap and go, “What are my odds of success?” “It is less than 50% if you’re the appellant.” A lot less than that usually, but here’s some more specific data that helps us with that.

Pam’s article is wonderful. We did not attempt to analyze Texas Supreme Court appeals. One of the reasons was because Pam has that covered. Her work is groundbreaking and excellent. In the Texas Supreme Court, I refer to it all the time.

Clients understand that you can't predict the future, but they like to know that there are objective data underlying your estimate. Click To Tweet

It sounds like if we want to nerd out on the statistical stuff, we should have Pam here, Jody.

We should. Honestly, we ought to have her on here because her stuff about the Supreme Court statistics is always interesting.

I use our statistics now for some of the same purposes I would use hers for, also, which is for settlement discussions that can help a client figure out if they want to settle a case for a particular amount. It also helps a lot of mediators. We keep a copy of the article around so that when someone goes in and says, “I think there’s a 90% chance that this judgment is going to be reversed.” The mediator can pull down this article.

“Let me show you why the statistics say you’re probably wrong.” Kent, this is fantastic. I enjoy nerding out on this stuff. It affects my practice day in, day out. I know Jody feels the same way. It’s great that you guys updated this. The data trends, particularly what you’ve observed following the change over in the major Metro area appellate benches is very interesting. I know our readers are going to enjoy hearing about it. I’ve given them the site to the article. If people have the TexasBarCLE subscription, they can probably get a lot of the same information as some of the CLE articles that you and Natasha had written. We like to wrap up with inviting our guests to share a tip or a war story. One that you can share publicly because I know as we were chatting about before we started, sometimes there are those that you can’t, but we’d love to hear from you on that.

One that I can share publicly, definitely a high point of my appellate career is I was on one of the programs, the Advanced Appellate Course, last year or the year before maybe. Jody, you were on the same program. I’m not sure which one it was. Afterwards, an appellate justice came up to me and started raving about how wonderful my presentation was and how it has changed the way that this justice looked at things. One of the greatest presentations and as this justice was talking, I thought some of this doesn’t seem to fit my presentation and he said, “Thanks so much, Jody, for speaking.”

I hadn’t heard that before, but I appreciate the feedback. That’s funny.

If Jody had been the one to ask the question about the war story, I would say, “Jody, you’re being punked.”

You would’ve thought it was a setup that maybe I sent them an Amazon gift card before our Zoom call.

I will work on that from my end for next time.

I’d never gotten around to sharing that with you, Jody, but that happened.

We look for opportunities for comic relief in appellate practice where we can find them. That’s a pretty good one.

I’m wondering what my topic was. I’m thinking about the things I’ve spoken about at that conference. I wouldn’t say any of them were life-changing.

TALP 10 | Verdict Reversals

Reasons for Reversal: The value of this article is that it can be used to advise clients about how to go about their appeal or whether to appeal their case in the first place.

 

I think they were for at least one judge.

Kent, unless you had something else to add, we can close it down. Thank you so much for being with us.

Thank you so much for having me. Thanks for this podcast. I think it’s a wonderful thing what you all are doing and it’s a great way for all of us to keep plugged in to the appellate world, especially when we can’t see each other in person. It’s a great time to launch this and I’m enjoying it.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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