TALP 19 | Written Advocacy


The importance of professional writing skills in law practice cannot be overstated. Trends in the legal world have increased the importance of written advocacy in an unprecedented way, especially with things going virtual. Todd Smith and Jody Sanders expound on this topic with their guest, Justice Elizabeth Kerr, from the Second Court of Appeals in Fort Worth, Texas. As a former civil litigator herself, Justice Kerr gained a fresh new perspective on written advocacy when she took the appellate bench. She sees written advocacy as something lawyers should take very seriously, and she believes that their written work should steer away from jargon-filled language toward more impactful messaging.

Listen to the podcast here:

How to Make Your Written Advocacy Effective | Justice Elizabeth Kerr

Our guest today is Justice Elizabeth (Leza) Kerr from the Second Court Of Appeals in Fort Worth. Justice Kerr, thank you for joining us.

I’m delighted to be here. Thanks for inviting me.

For the people who don’t know you, can you give us a little bit about your background and what you did before you went on the bench?

I graduated law school in 1982, I went to UT and after that, I spent two years clerking for a federal judge in Midland, the notorious Lucius Bunton, who just passed away. For your audience who were old enough to remember Judge Bunton, he was quite a character. I had an opportunity to take a job in Fort Worth with Law Snakard & Gambill in 1984. I’ve been in Fort Worth ever since then. In the last 10 years of my practice, I was with Friedman, Suder & Cooke which is a boutique litigation firm here in town. When there was an opening for the Court of Appeals, it was something that had always been a dream of mine. I ran for the position in 2016 and was fortunate enough to get through the primary and then a runoff. I took the bench on January 1 of 2017.

You picked an interesting time to come to the court because it was a static group of justices. Right about the time you got there, your colleagues started retiring and turning over. Now you’re one of the highest seniority justices on the court.

I try not to take it personally that people started leaving but there has been a lot of turnover. Once Lee Gabriel retires at the end of 2020, I will be number two in seniority behind our Chief, Bonnie Sudderth which is truly astounding after such a brief tenure.

Remind us how many judges sit on your court.

There are seven of us.

My reference point is the Third Court of Appeals where we’ve got six justices and strangely the way their election cycles run, four of them are up at one time. Is it like that with the Second Court?

We don’t have that big a group up at any given time. To be honest, I couldn’t tell you exactly what the breakdown is but it’s not a majority in any cycle.

It’s maybe 2 or 3 at a time.

I think that’s right.

That’s more normal. The way I understand what happened here was there were seats added to the court and no one wanted to give up any time they had left on their term to make the seats more staggered in terms of election cycles. What we see here is a lot of turnover like we saw in the last cycle because we have many seats. I was curious whether Fort Worth was affected similarly.

In this part of the state, we didn’t see the cyclical types of swings between Democrats and Republicans.

Lawyers can be fairly classified as professional writers, but it's amazing how poorly a lot of them do it. Click To Tweet

There were Republicans elected to the court in 2018.

Dabney Bassel was elected in 2018 with a Democrat opponent.

One of two statewide or something like that.

It covers Fort Worth and then it goes north and then it goes out west and has a big swath of counties out to the west of here.

We go all the way to Wichita County. It’s a large district, geographically about 10,000 square miles, but Tarrant County has the largest population center.

Since you’re in the fourth year on the court, what were some things that surprised you or that you haven’t expected since you joined and got on the bench?

One of the things that I had had more of a thought that there would be the luxury of time to sit, ponder, and think deep thoughts, which we do, but the workload of a court that does not have discretionary jurisdiction is heavy. We’re like gerbils on a wheel, some people have called it. It is like that episode of Lucy and Ethel in The Chocolate Factory. That’s what it feels like a lot of the time. As much as I would love for every opinion I write to be some beautifully crafted piece of prose, there are not enough hours in the day to do that.

Unfortunately, you also took the bench right in that height of the anti-SLAPP craze and as they changed the permissive appeal statute. You are right in the middle of the accelerated appeal bonanza from the legislature.

That has been the case.

All the while with budgets not being increased and, in fact, being decreased.

It’s a perfect storm sometimes but it’s a great job. I love what I do.

You practiced civil litigation with the Friedman, Suder firm in Fort Worth. Did you have any criminal law or family law experience? Was that something you had to adjust to when you got to the court?

That was an adjustment because my entire career was primarily business-related litigation and appellate work. I had a learning curve with the family and criminal law aspects of it.

Have you found it adapting to those types of cases as well after being civil your whole career?

TALP 19 | Written Advocacy

Written Advocacy: It is very easy to lose your credibility if you don’t take the time and care to make your written advocacy as good as it can be.


I’ve gone to, of course, CLE programs and that helps. I’ve got wonderful staff attorneys who know a lot about those areas so they have helped educate me. It’s been interesting, especially the criminal aspect, because I had not given much thought to criminal law since law school but reminding myself of all the constitutional principles involved. It’s been a thing that has been, not that enjoyable because criminal cases tend to be not the best reporter’s record to have to read sometimes, but it’s an engaging area of the law for sure.

Docket-wise, how does the Fort Worth court break down between criminal and civil? Is there a rough estimate?

It’s about 50/50. It varies from year-to-year but it’s roughly split along those lines.

One of our early guests was former Justice Scott Field from here in Austin. One of the things that surprised Justice Field more than anything about taking the bench was this sense of isolation that isn’t on the Bill of Sale. Has that been your experience too? What would you have to say in response to that?

It is an isolating job. We do tend to stay up here on the ninth floor of the Tim Curry Justice Center. We don’t see people. People never drop by, unlike being in private practice where you could call up friends and have lunch, or people would come up and see you. That doesn’t happen. There’s a much more formal relationship with lawyers and the community now. People do laugh at my jokes more. I hope that’s not because they feel like they have to.

I’m burying a laugh right now. I’ve illustrated your point.

Given your career as an appellate advocate and a litigation advocate, what have you learned about advocacy since you’ve taken the bench?

I knew this from the practitioner’s point of view but it has been brought home to me how important written advocacy is. We read so much, so many briefs and motions across our desk that if advocates don’t take the time and care to make their written product as good as it can be, it’s damaging and it’s easy to lose your credibility with typos or not citing the record correctly, things like that.

We see a lot of changes, as Jody pointed out, the increased number of interlocutory appeals that are allowed. We’ve said on the show more than once that summary judgments, well they used to be, verboten in trial practice, they’re not anymore. The court has seen an increase in summary judgments going up on appeal. I’ve made the argument to trial lawyers many times that the written advocacy issue is more important now in the trial courts than it ever has been. It’s certainly true that you’ve got to maintain a certain level of written advocacy skill and presentation to do the job well to present cases to the Court Of Appeals.

It’s important at all levels. I think back to the trial practice that I had and much of it was dispositive motions and briefs and things like that so those skills certainly carry through to all levels of practice.

Probably even more so nowadays with so much going on over Zoom and courts, trial judges are taking more matters on submission as opposed to being able to have only a limited number of hearings. It seems to me that that’s something that can’t be overemphasized, the need for written advocacy skills. I heard it said once that lawyers as a group can fairly be classified as professional writers.

It’s amazing to me how poorly a lot of them do it. Sad to say but it’s true. There’s a real reliance on the old ways of writing. I think back to when I started as a baby lawyer and we all did this, some partner tells you, “Here, file an answer to this lawsuit.” The first thing you do is you pull out an old one to go by then you start off, “To the honorable judge of the said court comes now the defendant…” You end it with praying that somebody go hints without day.

For those that don’t know in addition to being an appellate advocate, a justice on the Court of Appeals, do you have a strong background in legal writing?

I was fortunate. I credit Bryan Garner with heightening my interest in this when he was still a practitioner with Carrington, Coleman back in the late ‘80s before he started LawProse and began publishing all of his legal writing books. When he was first taking over moving into that direction, we had worked together on a big case on the same side and he thought enough of my writing skills that he began to ask me to help him out from time-to-time on different projects. That ended up with my being one of the contributing editors to Black’s 7th which was the 1st edition that he took over as editor. I learned an awful lot from working with Bryan and developing a love of plain English and understanding, more importantly, how much more persuasive it is.

You can get your point across so much better if you use one word instead of multiple words wherever possible. Click To Tweet

Lawyers, as a whole, tend to rely on legalese way too much because we think it makes us sound smart but you can be so much more persuasive with simple words. I tell people all the time, “Why would you say subsequent to when you can say after?” Lawyers can’t seem to do anything without, “We filed a motion,” instead of moving or, “We made an argument,” instead of argued. It’s much pithier and you get your point across so much better if you use one word rather than multiple words where possible. You can’t avoid terms of art or there are some times when legal jargon is required for context, you don’t want to start finding synonyms for subpoena duces tecum or something like that. By and large, lawyers could step up their game by trying to make it simple. I remember hearing once that Professor Wright at UT used to say that the best legal writing should be understandable by your average sixth grader. There’s a lot of truth to that.

You’re right about people tending to fall back on the forms and thinking, “My firm has blessed this.” As a young lawyer, you’re like, “I don’t want to do anything that goes against what the partners have blessed.” There’s that. I don’t think this is any controversial statement but it seems to me that some of that is laziness. It’s easier if you start with a form that you don’t have to think about the way that the intro is written or the prayer for relief, but truthfully if you put a little effort into it, as you point out, Judge, you can make it a lot more persuasive for your readers.

You also have the tug of the economics of how much can you bill your client for changing up a form to make it more readable. You might try to explain to them how it’s better but they don’t want to pay for an hour or two of your time to do that.

As far as your legal writing background and an emphasis on plain English, how does that play into the way that you write opinions as opposed to some of the other justices on the court?

We all value plain English. I would say that some of us just have a different style. For example, some of us are perfectly happy with starting a sentence with the word ‘however.’ It’s one of my pet peeves. I always start a sentence with ‘that’ and not ‘however’ but that’s just me. We all do care much about the craft of opinion writing and plain English is something I spent a number of years as an adjunct legal writing instructor here in town at the law school. Even starting in the mid-‘90s when it was the unaccredited DFW School of Law before various incarnations and finally now Texas A&M. I tried to impress upon all my students throughout the years the importance of writing in plain English.

I’m going to ask a loaded question: citations and footnotes, or texts?

I hope Bryan Garner never reads this. I used to be a “footnote all those citations” kind of person. Now, I don’t write that way and I don’t mind citations in text. As long as it’s not larded up with a whole bunch of string citations with many line parenthetical explanations, then it does get distracting. You could put into a footnote without losing anything. I like to know as I’m reading the text unless a lawyer is very skilled. For example, if a lawyer is writing about a certain legal principle and says something like, “The Texas Supreme Court has so held, and more than once,” and then footnotes it, I’m going to know what will be in the footnote is at least two Texas Supreme Court opinions. If someone mentions a legal principle and says, “It has been held,” and the footnote contains a 1970 case from some other court that’s never been cited for that proposition again, then I feel a little cheated. I do not mind citations in text at all.

The other way of phrasing that is, “It is well established. It has long been held.” Those are my favorites.

When you read briefs, do you read them all electronically or do you read them on paper?

I am old-fashioned but I like to think that the science of reading and comprehension is bearing me out on this. I absorb the material better on paper although not all of us do this, I have the briefs printed out to read. I like marking them up that way. I have never developed the skillset of annotating things electronically and I’m old enough that I don’t feel like I have to change ways on that. I prefer paper.

A lot of the people that I’ve heard that criticize footnotes in briefings tend to be people who read it electronically like on an iPad because then you’re having to scroll up and scroll down. I wondered if that impacted your perspective on that.

I know that it does several people up here. In fact, we don’t have any current justices who put their own citations and footnotes. Lee Ann Dauphinot, who was up here for many years, would write her opinions that way but I have heard people say that when you’re reading, especially on an iPad, it’s distracting to have to go up and down like that.

I’ll challenge you a little bit more because I understand and appreciate Bryan Garner’s influence on your writing. How could he not? He influenced thousands of lawyers nationwide. Is there another point on which you and Mr. Garner don’t see eye-to-eye?

Todd is throwing you the hardball questions.

TALP 19 | Written Advocacy

Written Advocacy: Lawyers tend to rely on legalese too much because they think it makes them sound smart, but you can be so much more persuasive with simple words.


It’s already out there that you disagree with them mostly on citations and footnotes. Surely he can accept some discourse, differing points of view.

I did ask him once what he thought of the beginning of a sentence with the word ‘too.’ He slapped me down on that but I like it. That’s a minor thing.

On the topic of legal writing though, what are some things that you wish lawyers did differently or better in briefing things that you see that you think are some missed opportunities?

There are many wonderful brief writers but I do think of the ones that I come away with thinking, “Oh gosh, I wish they’d have done XYZ.” First and foremost is using the table of contents to lay out your argument as opposed to saying, “Statement of facts, a summary of the argument.” You can use speaking headings effectively to get the court going your way from the beginning because I do look at the table of contents to try to get a flavor of what’s going on. Another thing that lawyers could do, it’s not in the rules, but I used to always do this and I love it when I see lawyers put an introduction at the beginning of their brief. That can be helpful to set the stage for what is to come.

The biggest missed opportunity is not taking the time to pare down the writing. I used to consider it a personal failure if a brief came anywhere close to the word limit and almost all briefs can be cut down quite significantly. I was thinking about Blaise Pascal, the French philosopher who was first credited, was saying, “I apologize that this letter is so long, but I didn’t have time to make it shorter.” It takes time to edit something down but it’s a profitable use of time. I harken back to how much we have to read. We love it when lawyers can lay out a cogent argument in as few words as possible, it makes our day.

When you pick up a brief to read it, is there a certain place or do you start at the beginning to read through or is there a section you always like to read first to orient yourself before you hop in?

I tend to read them from start to finish. Sometimes, I start with the appellee’s brief or I’ll start with the reply brief if there is one. I rarely pick up the appellant’s brief first and read them in the order that they were filed.

As far as the reply briefs, you’re not the first judge that I’ve heard say or suggest that reply briefs aren’t filed in every case. If I’m the appellant, I should have something to say in response to what the appellee says. Are there instances in which a reply brief wouldn’t be appropriate or do you think that’s a missed opportunity for the appellant?

By and large, it’s a missed opportunity for an appellant, especially in criminal cases. Sometimes you don’t have the budget and time for it, or your appointed counsel is filing an appeal to set the stage for something else like a habeas writ, and you don’t need to file a reply brief because you know you’re going to lose and you want to be able to do something else down the road. There are times when a reply brief doesn’t get you anywhere, but in civil cases, yes. Even if it’s 3 or 4 pages long to take on the 1 or 2 things that you think the appellee said that was totally out of bounds, mischaracterized your arguments, or something like that. It’s a good thing to do.

David Keltner’s rule, and the one that I’ve always lived with since I’ve worked with him is, help write the opinion for the court, layout your reply brief like what you want the opinion to look like. They’ve got a roadmap in a short, simple form that they can take and turn into an opinion if they want to. I’ve always liked that.

Although I’ll have to say that we appreciate that approach in terms of thinking about how to structure an opinion but we don’t take reply briefs wholesale and slap our name at the end of them but they are a good roadmap, or can be, when used properly.

What about the oral argument? As practitioners, we all place a lot of emphasis on oral argument and want that to be our day in court at the Court of Appeals. Has your perspective changed now that you are sitting on the other side of the bench and watching oral argument?

I will say that oral argument is useful in complicated cases. We don’t always grant oral argument, even if one side or both sides ask for it. If we think the briefing is good enough that we don’t have any questions, I try to be sensitive. I’m 1 of 2 justices on the court who did not come from a trial court bench. I remember what it’s like to bill clients for getting ready for oral argument. A lot of times, if I was the appellee, I was hoping that there wouldn’t be an oral argument because it costs a lot of money, but in the cases where it’s going to help us, then obviously yes. In those kinds of cases, it’s also good for the advocates to have brief handouts, that bullet point of the highlights or excerpts from the contract that are particularly important so that we can have a piece of paper in our hands at the bench to refer to while listening to the arguments. Not many advocates do that but it could be done to good effect more often than it is.

Does it affect you at all if you see an appellant’s brief come in and it looks like it’s a fairly complex case, but they’re not asking for oral argument? I know it was the appellant from my perspective, if I think the case should be argued, I’m not going to hesitate to ask for because I want the court’s attention on the case. That’s the issue for me. That’s the way that I know that the panel is lasered in on my cases when I have an oral argument.

Advocates can step up their game by just trying to make their written work simple. Click To Tweet

I’m trying to think of a time where I’ve seen a complicated case where the appellant didn’t ask for an oral argument. Nothing is coming to mind but if that happened, I would raise an eyebrow and wonder why they hadn’t.

I suppose you could see a situation where it may be a complicated case but if the briefing is done right and the advocates don’t think that argument is going to add anything to the discussion. And, as you suggest, money is an issue, that might seem like it would be a situation that would warrant not requesting argument.

That’s an occasion when you have your statement about the oral argument, use that as an opportunity to explain why you’re not asking for it.

Now that you’re watching these oral arguments as the decision-makers, is there anything that you think attorneys could do differently or better that can help the court or some missed opportunities there?

It usually does not help when advocates start reciting the facts of the case at great length because we are all familiar with the case by the time it gets to oral argument. That’s not necessary at all. It eats up time. If the lawyer is reading from notes or an outline it is not effective. One of my pet peeves and it doesn’t happen a lot, but it happens enough that it’s an annoyance, is when one of us starts to ask a question and the lawyer keeps talking and doesn’t immediately stop. That’s a little rude because advocates are always told, “The judge opens their mouth and you shut up.” Some of them keep talking or they’ll keep talking and talking after the red light goes on without asking for permission to wrap up a sentence or a thought.

In the Second Court, do you all meet and discuss cases before you sit for oral argument? Do you look at them individually in your own chambers and then meet after?

We confer after. We will not have discussed a case before the argument as a group.

When you confer, at that point, has one of the justices been assigned to write the opinion, I assume?

Yes, but that can change. By and large, that’s true.

Depending on the change whether there might be a dissent or the swing vote gets flipped to the other side.

That does happen.

Tarrant County and the metroplex generally has a very healthy appellate bar. In terms of the quality of oral argument that you see, do you see good oral arguments being delivered by folks that you don’t see all the time as appellate advocates or the folks that you know to be trial lawyers, for example?

Yes. We are blessed with some talented lawyers in this area generally. The overall qualities are quite good. Sometimes surprising from people that you might see once.

They’ve got to take off their trial lawyer hat and come into to the Second Court of Appeals with their appellate lawyer hat on, or some semblance of it drawing back even to the law school moot court days. That’s good to hear. You always hear about trial lawyers coming in and making jury arguments to appellate courts and that doesn’t tend to go over well.

TALP 19 | Written Advocacy

Written Advocacy: Using speaking headings can be effective to get the court going your way from the very beginning.


It does not. It happens occasionally but it’s not effective.

Those are probably the same people that are starting out with long introductions of the facts of the case.

The ones who need to hire an appellate specialist.

There are some great appellate specialists in four words.

They’re wonderful. It’s funny, and this would probably be because Texas is such a huge state, but I won’t talk about the facts of this. I’m personally involved in a family bit of litigation in a different state. We’ve hired lawyers but we’re the appellees now in the state’s Court of Appeals and I of course wrote the brief for our lawyers to save some money because lawyers are expensive but I was trying to find some CLE papers or some nuts and bolts things and talk to somebody and they said, “We don’t have appellate specialists here. We don’t do that sort of thing.” Texas is fortunate to have such a huge pool of talent when it comes to appellate practitioners.

I’ve found that to be the case as well. I’ve been lucky to work in a lot of different states on appeals. When you reach out and try and find local counsel that knows the court and knows the appellate rules, it is hard in some states because there are lawyers that haven’t done appeals, but there are not any appellate lawyers, so to speak, in a lot of places.

Judge, these are interesting times, to say the least. They were already interesting when COVID-19 started and began running its course. We had some even more interesting things develop with the ransomware attack on the appellate court websites. I guess we can split those up and deal with them a little separately but how has the Second Court been dealing with the challenges, shall we say, of COVID-19 and ransomware?

Two very distinct challenges but they have overlapped in time and it’s a double whammy there. When the COVID-19 issue first arose whereas we made it possible for people to work remotely. Even now, most of our staff attorneys are opting to work remotely but the justices have been coming in to work, almost all of us have, every day. I don’t want to drive my husband crazy by being home all the time. I’m glad to have a place to come, frankly. We set it up so that we would have at least one clerk on site all the time, even during that.

It would be a rotating schedule with our legal assistants because we needed people in here to process things. But then when the ransomware attacked and we lost our internet capacity and couldn’t get on Westlaw and TAMES, we were paralyzed for a while but we’ve got wonderful leadership here at the court. We were able to move fairly quickly into reviving the old system which predated my tenure on the court doing everything on paper. Motions get circulated in color-coded file covers like they used to. We all read them and check off our vote on paper. It was a throwback but we’re now back up on TAMES and are able to process things electronically.

TAMES hasn’t been completely fixed. It’s mostly fixed at least as of the date of May 8th, 2020, I believe it was the freeze date.

We did lose, I’m not quite sure how much information as of the day it happened, but we’ve been able to get back a huge amount of it.

That’s still in process. OCA and the Supreme Court folks that are dealing with this are doing a great job of trying to bring it back. It will get brought back in full. I have no doubt. It’s a little ironic though that we’ve had this wonderful system in place and everyone is getting used to working in this electronic environment even if you’d like to print your briefs out and mark them up. The safety net is you have to go back to paper. That’s reassuring though because for the user, for some time, and I’m not speaking specifically about the Second Court but it was difficult from a practitioner standpoint because we couldn’t tell what was going on inside the Courts of Appeals. It’s nice to hear what the Second Court did to adjust and then knowing that all the justices are going into chambers. From what you described, the work could keep flowing in that situation.

We were able to email with our staff attorneys and they could get on Westlaw at home so the work was flowing. We’ve all been proud of the way we pulled together and have kept things moving along. It would have been easy to throw up our hands after all of this and say, “We’re going to take a month off and we’ll come back.” We’ve been soldiering on.

Do you have any ideas on moving forward, when the court is going to go back to oral arguments, whether in-person or electronically?

Make it a goal to lay out a cogent argument in as few words as possible. Click To Tweet

We don’t have any plans to do it electronically. We’re old fashioned enough to recognize the importance of it. There’s something about being in the same room with advocates and the justices. You miss a lot on Zoom meetings. They’ve been great as a stopgap but I hope that we don’t go to a system where that becomes a routine practice. You get so much more of a sense of body language and interaction between the judges and all of that when you’re in a room as an advocate watching them and that’s lost.

As far as your question about when we’re going to resume in-person arguments. During the summertime, our practice is to take the summer. Some people say, “You don’t do anything in the summer.” In a normal year, we would quit having oral arguments early part of June and then spend the rest of June, July, and August, our fiscal year ends on August 31st, we would spend that time focusing on the cases that are either harder or will be a longer opinion. It gives us time to sit and crank those sorts of opinions out. We’re hoping that we will start oral arguments back up as we would normally do in September but we have not yet finalized to plan for that.

Like everything else in the world, there are a lot of moving parts and uncertainties and all that.

Jody, you’ve been in our courtroom. Todd, I’m sure you have too. It’s easy to spread out in probably every courtroom. We can accommodate social distancing without any problems at all.

You all are set up well for that. You have a big wide open courtroom with a wide open bench and lots of room between the tables already. It is already set up for social distancing.

A spread out lobby outside of the courtroom. We have a lot of space.

Has it been weird being in the courthouse with not that much going on downstairs?

We don’t see them downstairs that much. It’s only weird in the sense that we’ve gotten fewer appeals. The filings are down but we expect it. We don’t know, but we’re anticipating that there might be a build-up, a pent-up demand and we’ll get slammed all at the same time or it might get spread out. We can’t predict that but it is weird sometimes going into the parking garage where all the criminal court judges and the Court of Appeal justices park and seeing very few cars in there. Gradually, it’s gotten to where more people and judges are in the building but early on, it was like a ghost town.

We always like to close out by asking our guests to give a tip or a war story. You’ve given a lot of great tips. I don’t know if you have another one or war story that you’d like to share with us.

I hope I’ve given enough tips here and there but it would be redundant to say more about that. I’ll give a war story. About a year ago, I was on a panel with one of my colleagues who’s now no longer with us. To me, this is an example of a case where not every appeal needs to be brought. Sometimes it’s not the best use of the client’s time and money. We had an appeal and it was in a family law case. The amount of money involved was less than $40 a month that one of the parties had been ordered to pay. My colleague, and I won’t name him. If you all remember the Dondi Properties decision from the Northern District of Texas back in 1988, the one that spurred the lawyer’s creed and all the real focus on being an ethical and responsible advocate.

Not that the people involved in this case weren’t but my colleague, they might not have even gotten a question edgewise before he was like, “Are we really here? Are you taking up valuable court time and resources for less than $40 a month?” The appellate’s lawyer had to say yes and it went downhill from there but the parties were invited to stay afterward and work it out. They didn’t. They were also invited to go back and reread Dondi Properties. I had never seen an oral argument go quite that way. I’m sure that the appellant wished that they hadn’t asked for an argument.

That’s a zinger of a first question to start with.

I have never heard of parties being invited to stay and try to work it out at the Court of Appeals.

That’s the most interesting oral argument that I’ve been a part of.

TALP 19 | Written Advocacy

Written Advocacy: It usually does not help when advocates start reciting the facts of the case at great length, because the justices will usually be familiar with the case.


Justice Kerr, it’s been a pleasure having you with us. We’ve enjoyed visiting with you and we appreciate you taking the time to come on. I look forward to appearing in your court. It’s been some time for me, not living there in Fort Worth, but I know Jody is going to look forward to being back in the courtroom to argue at some point in the future, we hope.

We always love visitors. You don’t have to be here for an oral argument.

Thank you for that invitation.

 Important Links:

About Justice Elizabeth Kerr

TALP 19 | Written Advocacy

Justice Kerr grew up in Memphis, Tennessee, graduating from White Station High School in 1974. She became a Texan when she matriculated at Rice University in Houston, obtaining a B.A. in English and Art History in 1978, followed by a J.D. from the University of Texas in 1982. Immediately following law school, Justice Kerr spent two years as a briefing attorney for the late Honorable Lucius D. Bunton, III, Judge of the United States District Court for the Western District of Texas, Midland Division.

From there, Justice Kerr began her private practice in Fort Worth in 1984, first with the firm of Law, Snakard & Gambill. During the 1990s, in addition to maintaining her legal practice Justice Kerr worked on numerous projects with lexicographer and author Bryan A. Garner, including as a contributing editor of the seventh edition of Black’s Law Dictionary. Starting in 1995, Justice Kerr taught legal writing and research off and on for a number of years at what began as the DFW School of Law and then became Texas Wesleyan (now Texas A&M) School of Law.

Before being elected to the appellate bench in 2016, she was of counsel at Friedman, Suder & Cooke beginning in 2006. While at FS&C, Justice Kerr was a member of the planning committee of the Tarrant County Bar Association’s appellate section, serving as its chair for the 2010-2011 bar year. She is a Fellow of the Tarrant County Bar Foundation and a Life Fellow of the Texas Bar Foundation.

Justice Kerr currently serves on the advisory board of the Federalist Society’s Fort Worth Lawyers Chapter and on the executive committee of the Eldon B. Mahon Inn of Court. Outside her professional activities, Justice Kerr is president of the board of trustees for St. Peter’s Classical School in Fort Worth.


Love the show? Subscribe, rate, review, and share!

Join the Texas Appellate Law Podcast Community today: