Discretion isn’t just for trial courts. The intermediate courts of appeals are sometimes called upon to make decisions involving judicial discretion too. On today’s show, Todd Smith and Jody Sanders are joined by Michael Ritter, a staff attorney at the Fourth Court of Appeals in San Antonio, to talk about how the appellate courts approach those discretionary decisions. Michael also touches on the proper use of en banc review, as well as the technology the Fourth Court has applied to respond nimbly and continue its operations during these times.

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Discretionary Decisions in the Courts of Appeals| Michael Ritter

Our guest is our first staff attorney guest. We have Michael Ritter who is a staff attorney at the Fourth Court of Appeals in San Antonio. I’ll let Michael introduce himself a little bit more. Michael, thanks for joining us. 

Thanks for having me. I’m glad to be here.

Tell us a little bit more about your background, how you got to where you are, and what you’re doing.

I’ll start at the beginning. I was born in Austin and raised in Round Rock. I moved to San Antonio for college. I went to Trinity University and then I went straight through to law school. I did my first year out in California. I had no previous ties or connections to California. It was just something that I did. Academic success sometimes often depends on being in the right place and at the right time, having the right opportunities. Even though I was a mediocre student up until law school, my first year, I was number two in my class, but I don’t know how that happened. I had the opportunity to consider transferring, which I ultimately did to the University of Texas back home to Austin.

When I was in school, money was tight. I was working a couple of part-time jobs throughout college and law school. I remember there was one time where I went to get my hair cut and the hairstylist did a great job. She used this product on my hair. I walked out with this $12 bottle of hair gel I thought made my hair look good. I was driving home and realized I needed that $12 to eat for the next two days, so I turned around and returned it. When I was at UT, I got attracted to the on-campus interviewing process with big law firms. At that time, like our current time, we were in an economic recession and the practice of law was being affected. At that time, I decided I needed to get involved in as much stuff in law school to beef up my résumé as possible. I started off with mock trial and thought it would be great to be part of a mock trial competition team. In order to compete at UT Law on a mock trial team, you had to go through this general session for training and then they break you out into smaller groups for practicing.

TALP 15 | Discretionary Decisions

Discretionary Decisions: For appellate practitioners, monitoring issues are everything that happens from the filing of the notice and appeal until that last brief is filed.

 

I had broken out into a smaller group and we were practicing impeaching a witness with prior inconsistent statements. When I was going through the process, the other student I was working with was the witness and I said, “Would you please read the statement out loud?” He said, “No, I can’t.” I was like, “Why not?” He said, “I can’t read.” I said, “That’s interesting.” I got frustrated because I felt like that wasn’t the place for me. I walked out of that training session thinking, “There’s no way I want to do trial work. Not a single possible way.” It was either that day or a couple of days later that I saw a sign that said, “Moot Court Tryouts” and an arrow pointing in the direction where they were. I went to an information session about the moot court, not realizing there was a difference between the mock trial and moot court at the time. I thought, “This involves a lot of researching, writing, and arguing about the law rather than the development of the facts of the case or evidence. This seems a lot more up my alley.”

It was through that process that I realized I wanted to do appellate work, and that also affected the decisions that I made about the courses I wanted to take. At UT, there’s a lot of flexibility, not a lot of required courses. I ended up taking about seven or eight different writing seminars, where instead of taking an exam at the end of the course, you would submit a paper that you’ve been working on. It was also a way for me to make some extra money on the side because I submitted to writing competitions. Ultimately when I left law school, I had seven student notes published in law journals. I didn’t have family law, I didn’t have federal courts, but what I did have was a lot of experience researching and writing these long articles about specific legal issues. Although it was a tougher sell for a federal clerkship, it was something that a lot of state judges were interested in. That’s how I took the approach from law school going into the practice of law with the idea that I wanted to do appellate law in some form or fashion.

Where did you go after you graduated from UT Law?

My first year, I became a briefing attorney in state court here in Texas at the Fourth Court of Appeals for Justice Rebecca Simmons. I was there for a little over a year, and then I had a second clerkship with Judge Mike Keasler on the Court of Criminal Appeals. At that time, I had the experience in law school of interning at the Texas Supreme Court. So I had worked at the Supreme Court, Court of Criminal Appeals, and the Court of Appeals level before I went to the practice of law, ironically as a trial lawyer at the Attorney General’s office.

I’ve heard it said that practicing trial work for some time can make you a better appellate lawyer. It certainly gives you some perspective. I know you weren’t setting out to be a trial lawyer, but did you find that experience valuable and adding to what you bring to the table in your current position?

I knew there were a lot of similarities in what I was doing at the Attorney General’s office and the practice of appellate law, even though I only “practice” from the appellate court side. After doing my clerkships and going to work at the AGs office, it’s always been government work. I’ve never worked a day in my life at a private law firm. But I knew going to work the AGs office as a trial lawyer that I wanted to go back to the court to work as a permanent staff attorney. That was my goal. In my head, I had this limiting belief that I needed to have several trials under my belt before anyone would take my application for a staff attorney position seriously. When I was at the AG’s office, I was doing primarily civil defense work. It was an interesting transition from the Court of Criminal Appeals to civil litigation.

I ended up in a division that did civil litigation defense for criminal law enforcement agencies, which was a neat intersection in criminal law. It took me back to my year at the court of appeals transitioning between civil and criminal. It has both components, which attracted me to the position to begin with. In that process, I had done all this research and writing, my writing looked good. I was still a young lawyer, so I still had a lot to learn. I was successful in getting my cases dismissed on the pleadings or summary judgment, and none of my cases went to trial. The one that finally did, I ended up going to a different division at the time. So I didn’t ever go to trial as a first chair, although I did two federal jury trials as a second chair. It was more the researching and writing that I felt was the transferable skill to the court of appeals.

One thing that I learned was, as a briefing attorney in the court of appeals and the Court of Criminal Appeals, you’d read these records, and an issue finally gets selected for presentation at the appellate level. You’re reviewing it, and the appellee comes back and says, “This was not preserved.” As a briefing attorney, you go back and look at it, it’s like, “They didn’t object to this. There’s no objection here. How could this trial lawyer not have objected to this?” When you had that trial experience, you realize that hindsight is 20/20 and you have a million things going on. The most valuable lesson that I took from being a trial lawyer to now working as a staff attorney at the court of appeals was to be more gracious and understanding of the pressure that is put on you at trial. The pressure even applies to researching and writing motions. You may have the time to sit down and write it, but you’ve got to turn right around and work on another motion, another case, deposing another witness, and it’s fast-paced. It’s good to have that perspective.

It’s one of those things where, an appellate lawyer, you do have to remember not to Monday morning quarterback the trial team because there are many trade-offs that happen, and sometimes it’s a strategic decision because you don’t want to anger the judge or anger the jury. It’s easy to look back at that on a cold record and say, “Why didn’t they do that?” when you’re not in the heat of the moment with a judge staring down at you glaring daggers because you’re about to object to something that they’re tired of hearing about.

I also noticed that there’s stuff like that and legal researching and writing, whether it’s motion practice in the trial court and appellate briefing, where you’re assigned to work on this brief or you have the brief you have to write and you have the issues, do the research and then you think about it, file it, and then maybe gets set for oral argument and the opinion comes out and you’re like, “Why didn’t I think of that clear and obvious argument I should’ve made?” Even though you have significantly more time in that writing process, you still get focused on making these professional judgments, and then you can sometimes Monday morning quarterback yourself. I would encourage your readers always to be kind to themselves. We even make that mistake at the court of appeals plenty enough too. It happens to everybody at every level, and you’ve got to move on and not second guess yourself so much.

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This is my take on it, but it seems like the Texas Supreme Court in the last few years has relaxed some of the preservation rules a little bit or at least has been more forgiving and trying to decide cases on the merits rather than technical barriers, procedural barriers. I wonder if that’s reflective of some of those justices having the same feelings from their own experiences.

We can all use a little grace, if you’re down in the heat of battle, especially in the trial courts. It’s one thing to stand at the lectern, making an appellate argument and be stumped by a question from an appellate judge. Usually, you’re prepared, you’ve read the record, and you know the law. People forget that when you’re in the trial court, you’re making this stuff out of whole cloth. You’re not applying the standard of review and filtering everything through that. I’m around trial courts enough and Jody is, too. I respect the trial lawyers immensely because that is a skill set that you have to have, the capability of juggling a lot of plates at one time. It is not easy. Second-guessing after the fact is a very easy thing to do. We all should be reminded that there are a lot of other factors that come into this. 

I know you were in the trial attorney job for a while. When did you go back to the court as a staff attorney? How long have you been back there?

I returned to the Fourth Court of Appeals in November of 2014. So I’ve been back at the court about five and a half years.

A lot of people, even experienced appellate practitioners, don’t necessarily know what role the staff attorney has. It’s different in every court and in every chambers. Generally, what are some of the things on your court that the staff attorneys are responsible for?

Our court has a hybrid system of central staff and in-chamber staff attorneys. We only have one central staff attorney, the mandamus attorney. She handles all the original proceedings that are filed. The other fourteen staff attorneys, there are two to each judge’s chambers for the seven judges of our court. Our role is primarily to advise the judges on how to rule in the appeals, on motions, and original proceedings when they are referred in chambers, and to help each other out on what we refer to in our court as monitoring issues. For appellate practitioners, monitoring issues I’m referring to are everything that happens from the filing of the notice of appeal, up until that last brief is filed, that doesn’t require a decision on the merits.

That’s going to be any jurisdictional issues with the notice of appeal, motions to dismiss, motions for extension of time to file a brief. We’re also dealing with a court reporter and the trial court clerk, making sure everything is filed. Most of our time is spent researching and writing for our judicial opinions. Our court recently hired a new clerk of the court, Mike Cruz. He was Justice Eva Guzman’s former executive assistant. He and I developed a joke even before all this craziness with the coronavirus and ransomware attack that our roles sometimes take us to unexpected places. On the state job application forms, there’s a job description, which is usually bullet points. At the bottom, there’s a catch-all that says, “other tasks as assigned.” And so we end up doing a lot of things that we never thought we’d be doing. We’re like, “other tasks as assigned.”

Especially these days, you’re handling the remote work and you’ve had the ransomware come up. I bet you’ve found a lot of new roles you didn’t know you’re going to have. 

Sometimes I play therapist to staff attorneys. That’s more of a self-assigned thing. What’s been great about all this, it’s been incredibly stressful for everybody. It’s been a test of our relationships with each other. Judges to judge, judge to staff, and staff to staff. One thing that we’ve done incredibly well is pull through all of this together. That’s a matter of respecting each other professionally and personally.

Am I correct that your judge had the coronavirus?

That’s correct. She learned that she had contracted it due to travel. She was on spring break and it was a travel-related case. At that time, there were eleven people who were quarantined at a military base here. They were the first people in our community that had it. There were maybe about 9 or 10 cases. She was one of those 9 or 10 cases who got it through travel. It was early on in the process. She’s been vocal about having it. She did an interview with the Express-News, and her family was brave and courageous to come out with their story and encourage other people to take this seriously. How to handle it going forward is a matter of public policy for powers that be to decide and to make those tough calls, but when it comes to personal health, there are things that we can all do. She was a big advocate for making sure that we all do what we can to protect ourselves.

When Justice Chapa came out as having coronavirus, I saw her on Facebook and watched that journey and admired how she was vocal about it. It brought it home that this happens to people you know and people you work with. Since then, we’ve had some other judges in our system who have announced that they’ve acquired the virus. I certainly admire how she handled that in a way that’s a good example to all of us and taking it seriously. 

How’s she doing?

She’s doing a lot better. She’s out of quarantine. She’s been working hard on cases getting caught up. She’d been doing a little bit here and there while she was in quarantine and recovering and everyone was saying like, “Please, take care of yourself first. This can all wait.” She’s back at it, and we’re continuing to write opinions and get them out the door.

I’m sure she’s feeling the value of having good staff, keeping the docket moving. 

I hope so. She’s grateful and says so frequently, which is one of the reasons why I’m privileged to work with her. Supervisors don’t always say “Good job” or “Thank you.” She’s gracious.

One of the things that we wanted to talk about with you, I know you’ve written a lot of articles and you did a lot in law school. You’ve written a lot since. One of the ones that is either about to be published or was recently published was about en banc review and discretionary judicial decision making. That’s going to be in the Review of Litigation, is that right?

That’s correct. One of my interests in researching and writing my own articles and publications for the bench and the bar has centered around things that have caused me the most conflict. Those issues usually center on something where the appellate court has discretion. They don’t know how to clearly and consistently and quickly make those discretionary decisions. A lot of what we do is researching and writing for opinions where we don’t have discretion to determine what the law is, how it applies to the case. It’s the law is the law applied to the case. There may be gray areas where professional judgment comes in. The judges approach that with, “My judgment is this law means this, and here’s how it applies.” It’s not a decision that’s like, “I have the discretion to choose either way. I’m going to choose this way.”

When it comes to discretionary decisions at the court of appeals, some things are pretty straightforward, like whether to grant a motion for extension of time to file a brief. A lot of judges are like, “Sure, I have the discretion to deny this, but why would I that?” The more challenging discretionary decisions come into these proceedings and appeals where the decision about whether to either review the case initially or to review it after it’s been decided by a panel are at play. It’s a little bit different from the Supreme Court or Court of Criminal Appeals in the vast majority of their cases, which has mandatory jurisdiction over death penalty cases.

To civil practitioners, there’s that initial gateway step of discretionary review. That’s something that the justices of the Supreme Court of Texas are comfortable with it as part of the institution. At the court of appeals, the vast majority of what we get, we have to decide. There’s a lot of commitment to that cause to make sure that we do justice in every case that we can. Whenever there’s a discretionary appeal or a request for us to take a discretionary review of something, how do we make that decision? We’re unfamiliar a lot of the times with the precise standards that can apply to those and what all should be factored into those decisions. The article that is coming out is called En Banc Review in Texas Courts of Appeals. That will be published in The Review of Litigation. I intended that to be a comprehensive analysis of discretionary review by the en banc court of the panel’s decision.

There’s interestingly not a lot of case law on the en banc standards and Rule 41.2(c). Those are the extraordinary circumstances and maintain or secure uniformity of the court’s decision standards. There’s no case law describing what those standards mean and how they apply in any given case. What I noticed with en banc review, like other discretionary appellate review procedures like permissive appeals and mandamus, is that in mandamus, in Prudential in 2004, the Supreme Court took law and economics approach to when mandamus review is appropriate and what constitutes an adequate remedy by appeal. You have to balance the jurisprudential considerations, benefits against the detriments to decide whether an appeal is adequate or not.

In Sabre Travel International, for permissive appeals, the Supreme Court affirmed that it’s entirely discretionary by the courts of appeals. But the underlying purpose behind it is this law and economics approach to judicial efficiency. I took those approaches from those two proceedings or types of proceedings and tried to place en banc review into the bucket of discretionary review procedures. A lot of judges, they take a look at Rule 42.1(c) and think there’s no discretion to grant en banc review unless one of these two standards are met. This can affect resolutions of motions for en banc reconsideration. If, for example, the motion argues the panel erred or whatever, but doesn’t address the two standards, sometimes the recommendations from the staff attorney are, “They’re not addressing the two standards, we’re done here.” Sometimes recommendation with a staff attorney is like, “I think we should take a second look at it.”

There have been a lot of new appellate judges take the bench in the past couple of years. I know in our court, that’s reinvigorated the conversation about what do these en banc standards mean. My article addresses trying to approach en banc review as a discretionary review procedure where we should also apply a law and economics approach similar to the other discretionary review procedures like permissive appeals and mandamus proceedings. In addition to making a recommendation to the bench, the article also makes recommendations to the bar and to best practices for researching for writing and filing motions for en banc reconsideration that put together and synthesizes a lot of the recommendations that are made in CLE papers. A lot of credit goes out to Steve Hayes, Scott Rothenberg, that call from Third Court of Appeals for a lot of the thinking, the work they’ve already done on that, which made that part easy to put together.

We always look at when a case is over in the court of appeals and one party or the other has had a bad outcome—it happens in every case—clients want to know what’s next, and you have to make a decision at that time whether to proceed with some further practice in the court of appeals or to go ahead and move on to the Texas Supreme Court if there’s a case to be made for that. To me, en banc gets lost sometimes because you’re arguing or you’re looking at your panel opinion and unless you dig deep in the law beneath the panel opinion, the grounds, what I’ve always thought to be grounds for en banc review, which you outlined, they’re not always apparent unless you’ve got a conflicting opinion from another panel.

That’s the most obvious example I can think of. In which case, I wouldn’t hesitate to seek en banc review if I was on the bad end of a decision that didn’t go with precedent from that same court. That seems to me to be the most obvious use of en banc review is to harmonize the results coming out of that particular court. Having best practices and so forth relating to en banc practice will be useful. Even seasoned appellate lawyers don’t always do it right. I’m not saying that I do it right, but it’s an issue that you’ve only got many bites at the apple. What I do tell clients sometimes is, “If you’ve got a conceivable defensible en banc issue, that is a bite at the apple that you are probably going to want to take.” Having a roadmap to go about doing that will be super helpful. 

The article covers a lot of those topics and it notes that en banc review motions and motions for rehearing generally are some of the most difficult, challenging legal writing assignments that a lawyer can have because you’re trying to convince a court that’s already made a decision that they’re wrong instead of trying to convince another court that another court is wrong. It’s challenging to strike a proper tone and to argue it in such a way, you’re already running up against confirmation bias. The court, they’ve already spent a lot of work on it. They think they got it right. You also have to deal with potential defensiveness of the work that’s been put into it. Some of the recommendations are about how to approach that a neutral way.

Another recommendation that’s made in the article is when you’re considering filing a motion for en banc reconsideration, that the goal of the practitioner and the goals of the court aren’t the same. You have to find where those goals overlap. As a practitioner, you’re trying to get a better result for your client that you got from the panel. From the court’s perspective, en banc review is only going to be appropriate, depending on the view of the court, for conflicts or inconsistencies and things that are truly extraordinary. One of the things that I recommend for en banc motions is to frame the motion around tapping into the values that underlie these two en banc standards, which are uniformity and extraordinary circumstances.

Sometimes whenever you had your case and the panel errs, there’s some conflict between judges that think that en banc review is not proper to correct panel errors” Or you have a significant historical argument and support of why it is appropriate to correct panel errors. It’s not so much about proving the panel erred. It’s about the effect of the panel’s error upon the parties in the case, other parties that are similarly situated, and upon the court itself if there is a conflict. Some courts require there to be a clear, direct conflict with the prior decision of the court, whereas the historical development of en banc review supports a broader interpretation of where there are inconsistencies that reflect on the court’s integrity as an institution. There’s language from one of the seminal U.S. Supreme Court cases on en banc review that tried to tap into the values of consistency and justice for the parties in the particular case rather than just the panel got it wrong.

TALP 15 | Discretionary Decisions

Discretionary Decisions: En banc review motions are some of the most challenging legal writing assignments that a lawyer can have because you’re trying to convince a court that’s already made a decision that they got it wrong.

 

To Todd’s point, that’s one that you don’t necessarily think about when you’re reading a court opinion and internalizing if there’s a conflict with this instead of thinking about it from a more institutional perspective of, is there something here that we can point out to the court that maybe doesn’t look right or it could be a little bit more well-defined? That’s an interesting approach that I don’t know that I’ve thought through.

Also, it’s going to present challenges because if you say that the court’s conflicting with a prior decision, it’s to flush out the value of, “You’re being inconsistent.” That goes along with those other recommendations to be neutral. It requires a refined sense of appellate judgment and legal research and writing skills to strike all the right chords. Even when you do that, it’s entirely discretionary.

It’s always hard because you’re asking them to sit in judgment of their own colleagues rather than a trial court or the Supreme Court looking at what a lower court did. You’re saying, “The people down the hall got it wrong.” You need to substitute what you’re thinking for what they say, which is never an easy conversation to have with a court.

It seems like there are some cases that might be more clear-cut, like a panel opinion that takes a 180 from a previous panel opinion. You get into a situation like that and you’re talking about, what are the expectations of the parties and being able to rely on precedent? It’s one thing to follow one line of precedent or the other if there are possibly two different lines between and among the fourteen intermediate courts, and who knows what the Supreme Court has said. Seemingly it’s a universal principle that parties ought to be able to rely on the precedent of the court. If the court accidentally—because it could only be an accident—issues an opinion that’s divergent from prior precedent, that’s a fairly clear-cut use of en banc review, I would think. But I can appreciate what you’re saying, Michael, about you need to exercise caution and judgment in how it’s presented. Telling the panel, “You got it wrong, and by the way, we’re taking it up with the other judges too before we take it upstairs to the Supreme Court.” There might be some inclination to dig in on the position at that point.

One of the challenges, when you have a panel decision that is clearly wrong, is to overcome this popular belief that, “A panel got it wrong, and we may disagree, but that’s not the proper use of en banc review.” There is, as you noted, being superior to the people who office next to you and exercising the role of the en banc court. One of the things noted and discussed in the article is that panel review is a weird government decision-making process because most governmental entities require majority vote. In panel decision-making, you can potentially have two judges making the majority of a panel over one dissenter decide the law for all the other judges on the court. What other democratic institution makes decisions based on minority rule? It’s often said that panel review is a general rule, but en banc review is an exception to that general rule. My perspective on it is panel review is an exception to the general democratic principle of majority rules, minority rule system. That’s an exception. En banc review is merely an exception to the exception that allows the court sitting as a whole to exercise its primary function, which is to do justice in the case.

That is an appellate lawyer answer when you’re talking about exceptions to exceptions. I do appreciate that because that’s a framing that I don’t think I’ve ever thought about that way, but it makes a lot of sense that you only have potentially two members out of 12 or 13 that decide something for a whole court. This may be anecdotal, but since we’ve had judicial transitions, I’ve seen several en banc rehearing motions, not in my cases, but in cases I’m following, where they’ve said, “New members on the court, maybe you should reevaluate this prior panel decision that influenced the decision here because that seems like that was wrongly decided.” That’s an interesting approach. I can understand why you would come from that and hope that maybe these new sets of eyes would see things differently.

The other one that you mentioned briefly, and we don’t have to go in-depth, is permissive appeals. That’s one of the things that I have seen a lot more of in the last couple of years. Same idea, but a little bit different. You’re trying to get the court to take on work that they don’t have to take on when everything else they do is non-discretionary and so much of it is accelerated, and now you’re trying to throw something else at them. That’s another interesting discretionary thing. You mentioned the Sabre case where the Supreme Court says, “Even if they don’t look at it, we will, and we may decide it on the merits in the first instance.” That whole area of practice is interesting to watch develop too.

Along the same lines as the en banc review, acknowledging the existence of another option for these parties to get justice in the court of appeals like, “We could take it to the Supreme Court” or “The Supreme Court always has the authority to grant review.” It was like, “We’re not standing between you and justice. Let them tackle these tough issues.” It’s along the same lines. You might have the standards met, but ultimately as the Supreme Court noted in Sabre Travel, even a congested docket is sufficient reason to deny a permissive appeal. It goes back to the law and economics approach. From the court’s perspective, it’s about trying to tap into the court’s values that they’re trying to protect and promote while also cutting against the grain with the fact that it’s another appeal for them to decide. It’s less efficient for them. What we see more frequently and in our court and others is multiple appeals from the same case. It’s like, “These people again, they’re back. What is it now?” The idea of subsequent appeals in a case is concrete to judges, and if a permissive appeal could prevent appeals in the future by making an early decision about a controlling question of law, then that’s your selling point. This is going to save you work down the line. It’s a hard sell, but it’s an option there.

There’s that law and economics, that pragmatic side of it that you talk about. Courts seem to recognize it’s really costly to have somebody to go through an entire trial proceeding, whatever that entails, only to come up with a question that we’re then going to have to answer on appeal and then maybe force you to do a do-over, when at the outset we can jump over this and decide this legal question that doesn’t require any factual resolution. Hopefully, you could get everybody a good answer and maybe get rid of the case back there, which is appealing for everyone, including the clients if they can avoid that process and the delay and money that has to be thrown into that. 

Another article I wrote, it was for The Appellate Advocate, it’s called Let It Go: Has Texas Actually Disposed of the Final Judgment Rule as the “General” Rule? It’s this idea that we came from this place of trying to jealously guard appellate court resources from excessive and multiple appeals in every single case. The final judgment rule is a general rule and we’re going to have a few exceptions for interlocutory appeals. Over time, we’ve had more interlocutory appeals, also permissive appeals and we’re going to expand mandamus availability. This caused me to question whether the final judgment rule is even the general rule anymore. It seems like it’s just one of many ways to get your case in front of the court of appeals.

When I was writing that, I was having a conversation with somebody about, “Maybe Texas should get rid of the final judgment rule and make determinations about whether to accept appeals based on more general law and economics approach.” Whereas some things like truly incidental, small, minuscule matters aren’t going to be reviewed, others that are significant can be reviewed to make that process more streamlined for the court of cppeals. The problem with that is whether appellate practitioners are supposed to know whether something can be appealed or not. There needs to be some line drawing. In the Dallas Symphony case, the Supreme Court decided Judge Hecht echoed the same sentiment, which was that we have all these exceptions to the final judgment rule. Really, the final judgment rule can’t even be called the general rule.

Every session the legislature seems to add another category to 51.014 that gives you a little bit more workload and an accelerated appeal.

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That was my come to Jesus moment in writing that Let It Go article. It was Justice Wainwright’s inspiration and the Aladdin quote from A Whole New World. I started the article with Let It Go from Frozen, not only to mean, “Let’s let the final judgment rule as a general rule go,” but also, personally, let go of all the frustrations of all these interlocutory appeals. Nothing’s going to stop it. It’s going to keep coming. And on the bright side, it keeps it busy at the court of appeals and it’s job security. It’s good for the parties to be able to have an option to prevent wasteful trial court proceedings when there’s been an error.

You have had a lot of challenges the last few months like everybody else, and you’ve been working remotely in your court and a lot of the other courts have too. On top of that, you had ransomware. But it seems like technology has enabled the court to respond nimbly and continue its operations during these times. What do the courts have in place that has allowed you to keep the doors open, so to speak, virtually?

In some of the other episodes, David Slayton and Blake Hawthorne covered a lot of technological opportunities that are being used by the courts of appeals and the appellate courts generally. Maybe to answer your question in a way that’s more specific to courts of appeals and our court, the Fourth Court, is in response to the ransomware attack because the first line of technology is down. What’s the backup? We’ve been fortunate at the Fourth Court. People don’t know this, but OCA operates as an information resource for appellate courts and they also provide IT support to a lot of courts. Some of the larger courts also have an onsite IT person. The Fourth Court is lucky to have an onsite IT guy, Dale Merritt. He has been rigorous over the years of keeping backups of backups. Unfortunately, some of our backups were affected by the ransomware attack. In addition to that, some courts use the TAMES system, the Texas Appeals Management and Efiling System. Whenever a document is efiled through the efiling service, it then gets ported into the TAMES system, where we can review it. It’s timestamped and then it gets distributed to the proper judge’s chambers.

The courts that heavily rely on TAMES for voting and uploading opinions, circulating opinions, have been challenged particularly by the ransomware attack. Our court uses TAMES for a lot, but a lot of the motions and opinions, we circulate via email. Sometimes we do jurisdiction checks by having the clerk’s record emailed to us. For a lot of our cases, we were able to pull from our emails the clerk’s record, the reporter’s record, the briefs, prior drafts of an opinion. That’s allowed us issue 39 opinions since the ransomware attack occurred. That’s what allowed us to stay online.

I’m looking at TXCourts.net, which is the secondary site that was created as a result of the ransomware attack for the posting of court opinions. The Fourth Court of Appeals is by far the most active court in terms of posting links on that site. Can we assume that some of these courts that haven’t had orders posted, that perhaps they’re more reliant on the TAMES system than the Fourth Court is?

I think so. It’s hard to know. We had the annual meeting of the Texas Association of Appellate Court Attorneys where we talked about different practices, but I’m not sure this has ever come up before. I do know that the Dallas court did their own thing for a long time. They have their website, their own server, and everything. They were much less affected by the ransomware attack. It does look like the Thirteenth Court of Appeals has been active, and I don’t know whether the Court of Criminal Appeals has issued anything.

Have you all been doing Zoom oral arguments in your court?

That’s correct. We’ve had three oral arguments. They went off really well. Even with the ransomware attack, we have the entire record for two cases and almost the entire record for the other case, missing just one volume of the reporter’s record. The judges were able to have, in the era of coronavirus and a ransomware attack, three oral arguments that might not have occurred otherwise.

What can you tell us, Michael, about the en banc order extending time to file briefs? I think about half of the fourteen courts have issued these blanket orders. We don’t have to get into the details of the order other than to say that without even the need to file a motion, the court has made the decision that briefing deadlines that are underway, where the clock is ticking, are automatically extended to June 30th with certain exceptions. The exceptions being primarily mandamus proceedings or original proceedings and certain family law cases. Can you tell us anything about the court’s purpose in issuing that order? Would it have happened apart from ransomware or was it driven by ransomware?

I can’t speak to the decision of my court to make that decision, unfortunately. I’m not sure I can provide any more insight. From taking off my court of appeals staff attorney hat, my guess would be that it was in response to the ransomware attack rather than coronavirus. I am not sure if this type of order would have been so popular if one court did issue it without the ransomware attack, if other courts would’ve followed.

The real question in my mind on this is I expected this to be fairly uniform—that we would see orders out of virtually all if not all of the courts, if not a blanket order out of the Texas Supreme Court. It seems like the Supreme Court has taken a real hands-off approach. We’ve got a new emergency order that’s come out that starts to map out the future of jury trials in our state. But it says nothing about briefing deadlines. This was after a number of the courts started issuing these blanket orders. It seems like the Supreme Court is letting each of the intermediate courts do its own thing on extending these deadlines. You may not be able to comment on that and I certainly appreciate that. That’s been an observation on my end. I’m telling my trial lawyer clients and people that I work with, “Don’t assume anything.” You better look and lay your hands or lay your eyes on an order out of your court that says what you think maybe it should say because there’s even a little bit of variation between and among the orders themselves.

If I can provide any more insight to that, it might be because there are many cases in the courts of appeals that are different stages. Without a blanket order, a lot of the judges even before coronavirus were inclined to grant extensions liberally, up to 2 or 3 motions, before requiring something more specific. There’s still that default feeling among the court of appeals justices to grant these. Even more so, when you add on coronavirus and when you add on there’s a ransomware attack. Perhaps it’s a lower priority for the Supreme Court because there’s still that default system of liberal granting, especially in these times. There also may be in some cases where that it’s on the 5th or 6th extension, and the court has been very clear that if you don’t file, it’s going to be dismissed, if a blanket order came by and they’re like, “Ha! Got another 30 days! We’ll start this process over again!”

It sounds like some people I know.

Maybe you’re getting close to figuring out who’s responsible for the ransomware after all. “No more extensions absent, good cause, click.”

Create a good cause for the whole state. 

I’m perfectly fine with people having more time given everything that’s happening. I think that’s shared by who I work with, although I can’t speak for them. It’s a reflection of extending that court by court, making those determinations that, even in that 5th or 6th extension, this is what we need.

Everybody needs a little grace these days, to go back to your point. 

What you’ve had to say has been interesting and our readers will find it that way too. 

We appreciate it.

Thanks for spending the time with us. It’s our tradition to ask each guest to share a tip or a war story relevant to appellate practice. I’m sure in your position, you have a few. We like hearing when the justices tell us the do’s and don’ts of practicing in their court, that’s always useful. What along those lines, Michael, might you offer up?

I was thinking something a little bit broader. I could write a book on best practices in the court of appeals. If I’m allowed to offer something a little bit more general than a specific tip, then my recommendation to the readers would be to get involved in your local and state appellate sections if you can for the opportunity to meet us, your staff attorneys, throughout the state. There are a lot of misconceptions about what we do, how decisions are made. It’s about getting to know us. Some people are staff attorneys because they don’t want to be that involved, but a lot of us are at the Fourth Court of Appeals. The chair of the Appellate Section in San Antonio is Matt Compton, who is a staff attorney. Our new incoming chair is Hayley Ellison, also a staff attorney at the court of appeals. A staff attorney who recently left, she was the president of the Bexar County Women’s Bar. We’re out and about. Get to know us. It will add value to your appellate practice.

TALP 15 | Discretionary Decisions

Discretionary Decisions: The courts that heavily rely on TAMES for voting and uploading and circulating opinions have been challenged by the ransomware attack.

 

It’s not going to make a difference in the merits of your case. But what it does is, for those discretionary things, whether it’s a permissive appeal, or en banc review, or even a motion for extension of time, to know you, individualize you and your character, allows us to dispel any doubts about whether or not you’re yanking our chain. Whether you’re going to be able to present a case, your tone, does it come across in a particular way because we’ve had conversations with you. There are several things that add value to your practice. It’s not going to make a difference in your case, but it’s going to give us more confidence in you. So if you have an opportunity to get involved, please do.

That’s a great tip and one that I’ll echo as someone who’s involved in our local bar section. It is a great way to meet the people at the court and get to know them and get to understand on a deeper level how it all works.

Before a couple of years ago, I wasn’t involved in everything. I’ve become a bit of a bar junkie. I took a justice is a blind approach to writing opinions like, “I’ve got a brief, whatever. Here’s the opinion.” A lot of the times I get asked by the judges, “Who’s the lawyer on that case? Who’s the trial judge in that case?” I was like, “I don’t know. I don’t even look because I don’t know who the people are anyway. It shouldn’t matter. Why are you asking me?” After getting more involved and getting to know the trial judges and the lawyers, what has helped me is I can visualize and it make it more concrete for me. Sometimes we get this compassion fatigue in our jobs and seeing bad stuff over and over again happen. We try not to internalize that. We turn ourselves into machines and publish an opinion and get it out the door. What that does is it helps us to humanize what we do at the court of appeals because it is remote even when we’re not working remotely.

Those are great points and good advice. 

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About Michael Ritter

TALP 15 | Discretionary Decisions–Staff Attorney, 4th Court of Appeals of Texas (2014–present): I advise judges on how to rule on and decide appeals, motions, and original proceedings, and advise judges and other staff on procedural matters, and how to handle issues efficiently to maximize the fast output of clear, concise, and correct judicial opinions. Working for the judiciary, I’ve drafted over 350 opinions in civil and criminal appeals.

–Trial Attorney, Texas Attorney’s General Office (2012–2014): As a trial attorney, I tried civil jury trials to verdict in federal court, including securing a take-nothing verdict against a $9 million claim. I also worked on over 100 civil cases as first chair, drafting pleadings and dispositive motions, handling pre-trial discovery matters, arguing motions, and handling appeals in state and federal courts. Practice areas included civil rights, constitutional issues, eminent domain, and employment.

–Briefing Attorney, 4th Court of Appeals of Texas & Texas Court of Criminal Appeals (2010–2012): As a Briefing Attorney, I performed tasks similar to those I now perform as a Staff Attorney.