D. Todd Smith is an appellate boutique handling matters throughout Texas.

The firm helps trial lawyers and their clients navigate the appellate system by anticipating and addressing legal issues at all stages of litigation. We are legal strategists, consultants, and advocates who position cases for success before, during, and after the trial.

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Appeals and Original Proceedings

What kinds of orders are subject to appeal in Texas?

Generally, a trial court’s rulings in civil cases are not subject to appeal until a final judgment has been rendered. To be final, a judgment must dispose of all parties and issues.

The general finality rule has several statutory exceptions. The most common examples of appealable interlocutory orders are those that deny a motion to dismiss under the Texas Citizens Participation Act, grant or deny a temporary injunction, or deny a motion to compel arbitration. Texas also has a “permissive” appeal statute authorizing review of an otherwise-unappealable interlocutory order involving a controlling question of law.

What is required to perfect appeal?

An appeal is perfected by filing a notice of appeal with the trial-court clerk. Timely filing is jurisdictional, but jurisdiction attaches so long as the appellant files an instrument representing a bona fide attempt to appeal.

If an appeal is not available, do I have any other options for obtaining higher court review?

If a court order cannot be appealed because it is neither a final judgment nor otherwise made appealable by statute, relief may be available through the appellate courts’ authority to issue extraordinary writs. The most common writ in civil matters is mandamus, which is an original proceeding filed directly in the appellate court. To obtain mandamus relief, the requesting party—known as “the relator”—must show that the trial judge committed a clear abuse of discretion for which there is no adequate remedy at law.

Is a judgment automatically stayed while the case is on appeal?

In most cases, the filing of a notice of appeal does not prevent the judgment or order from being enforced. The losing party may need to post a supersedeas bond or other security in the amount of compensatory damages awarded in the judgment, plus interest for the estimated duration of the appeal and costs awarded in the judgment. The amount of security necessary to supersede a judgment is subject to trial and appellate court review. as the appellant files an instrument representing a bona fide attempt to appeal.

What is the appellate record, and how do I go about getting it?

The appellate record consists of documents filed in the case (the clerk’s record) and the transcript and exhibits from the trial or relevant hearings (the reporter’s record).

Filing a notice of appeal automatically obligates the clerk to prepare the clerk’s record. Absent a specific request, the clerk will include only the items mandated by rule.

 

A reporter’s record is not necessary to every appeal. When relevant, the appellant must request the reporter’s record and must specify the proceedings to be included.

The appellant must pay the clerk and the court reporter to prepare and file their respective parts of the record. Once filed, counsel of record on appeal can download a copy for free through the TAMES Attorney Portal: https://attorneyportal.txcourts.gov.

How long do I have to file an appeal?

In appeals from jury trials, a notice of appeal must be filed within 30 days after the judgment was signed unless a party filed certain kinds of motions (usually a motion for new trial, to disregard jury findings, or for JNOV) within that same period. If the proper post-judgment motion has been filed, or in some circumstances, if a request for findings of fact and conclusions of law was made within 20 days, the notice of appeal will be due 90 days after the judgment was signed.

For interlocutory appeals, the appellant must file its notice within 20 days after the order was signed. Post-judgment motions/requests do not extend this date.

When will my brief be due, and how long can it be?

Appellant’s brief is due 30 days after the appellate record is filed in the court of appeals. This deadline is shortened to 20 days for interlocutory appeals. The brief must not exceed 15,000 words, calculated according to the procedural rules.

Appellee’s brief is due 30 days after appellant’s brief is filed (20 days for interlocutory appeals). The same 15,000-word limit applies.

Appellant may file a reply brief within 20 days after appellee’s brief is filed. A reply brief may not exceed 7,500 words.

What standards do appellate courts use when reviewing a judgment or order on appeal?

Standards of review define the parameters of a reviewing court’s authority in determining whether a trial court erred and whether the error warrants reversal. Texas courts recognize four primary standards of review: de novo, abuse of discretion, legal sufficiency, and factual sufficiency.

Will the court of appeals hold oral argument in my case?

Most appeals are decided without oral argument. As a practical matter, this means the briefing stage is the most important phase of an appeal.

If oral argument is granted, what can I expect?

Texas appellate courts usually sit in three-judge panels. Both sides are allotted 20 minutes for argument, and appellant may reserve up to 5 minutes for rebuttal.

Oral argument is an opportunity for each side to succinctly explain why, under the law and the facts, it should win. The justices will usually ask questions and will likely interrupt counsel’s presentation to explore issues of interest to the court.

What if I lose in the court of appeals?

A party who loses in the court of appeals may seek review in the Texas Supreme Court. Appeals are handled through a petition-for-review process by which the Supreme Court selects cases it deems important to Texas jurisprudence.

Mandamus and other original proceedings may be brought in the Supreme Court after being presented to the court of appeals.

Dispositive Motions

Why should I hire appellate counsel to handle motions to dismiss or motions for summary judgment?

More cases than ever are being targeted for early dismissal. This trend in civil litigation has made written advocacy more important than ever. Rather than rule from the bench, trial judges often take potentially dispositive motions under advisement to digest the parties’ written submissions and the law. Preparing and responding to these motions is a task well-suited to appellate counsel, many of whom have honed their research and writing skills working for appellate courts and know the kinds of written arguments judges find persuasive.

Appellate counsel with experience attacking or defending summary dispositions on appeal can also help avoid procedural traps that may prevent the higher court from reviewing the parties’ arguments on the merits. By having an appellate lawyer take the point on potentially dispositive motions, trial counsel can reap the benefit of this experience while continuing to handle other important aspects of the case until the court rules.

Litigation Consulting and Support

How can appellate counsel assist with case theory, strategy, and error preservation?

When the stakes are high or an appeal seems likely, getting appellate counsel involved early can pay big dividends. Like clients, trial lawyers sometimes have trouble seeing their cases objectively, and a good appellate lawyer will provide a dispassionate view. Appellate counsel may suggest new theories or defenses or point out recent changes in the law affecting trial strategy. Once the case has been tried and the record has been set, those opportunities to influence the outcome are gone.

Appellate lawyers are well positioned to help develop the record in anticipation of a future appeal. This works best when appellate counsel is fully integrated into the trial team. As a utility player with both a broader vision and a detailed understanding of error-preservation rules, an appellate lawyer can help steer things in the right direction and avoid significant problems later.

Is there an advantage to having appellate counsel prepare my jury charges and handle formal charge conferences at trial?

Litigators are taught that task number one when a new case comes in is to prepare the jury charge. Knowing the questions a jury will likely answer at trial profoundly influences discovery and evidentiary development.

So who actually handles their caseload that way? Not too many trial lawyers can honestly say they do. While the case ramps up and as it continues to develop, appellate counsel can take on drafting proposed jury questions, definitions, and instructions that will serve as a roadmap throughout its life cycle.

An appellate lawyer who prepared a draft jury charge is a natural choice to defend it, to attack the opposition’s version, or to preserve error at the formal charge conference. This is a critical phase of any case because the error-preservation rules are not easily mastered, and charge error is a frequent basis for reversal on appeal. Trial counsel’s time is better spent focusing on what comes right after the formal charge conference—closing arguments—than worrying about charge objections and requests or whether a theory or defense is being submitted properly. It’s very difficult to perform both tasks well.

Can you help by providing expert testimony on appellate attorney fees?

Trial lawyers routinely underestimate the amount of time necessary to attack or defend a judgment on appeal. Possible explanations include a lack of appellate experience or a deep knowledge of the case that does not automatically translate when applying the appropriate standard of appellate review. When attorney fees are recoverable and the amount sought or awarded as conditional appellate fees is too low, the client may be left unable to recover all the fees actually incurred for the appeal, even after a victory. An experienced appellate lawyer is well positioned to provide an accurate estimate of what an appeal will cost throughout the various stages—including oral argument in the intermediate appellate court and the different phases of review in the Texas Supreme Court—and to provide expert testimony supporting an appropriate conditional fee award.

Should I need to worry about post-trial proceedings if a case is headed for appeal

Motions for new trial, to disregard adverse jury findings, or for judgment notwithstanding the verdict are the last opportunity to preserve error for appeal. These motions also represent the last chance to persuade the trial court that the jury reached the wrong result or that the court should allow the verdict to stand. This is another point at which written advocacy is crucial, and the timetables can be very tight. An appellate lawyer already familiar with the case and the legal issues stands the best chance of presenting or opposing these motions effectively.

Converting a verdict into a final judgment often poses a new set of challenges, such as avoiding waiver when requesting a judgment adverse to the client and how to elect from among potential remedies in a way that provides the maximum recovery, but minimizes the prospects for reversal. Experienced appellate counsel can anticipate and address these issues proactively.