TALP 16 | Why Appeals Matter

 

Statistically speaking, any appellant faces an uphill battle with less than a 50% chance of success. But, with those odds, why should a client ever appeal? Todd Smith and Jody Sanders answer this question, highlighting why appeals matter even when the odds might not point to success. The discussion focuses on how standards of review impact the appellate issues and chances of success, and other considerations to raise when counseling clients about the reasons to appeal (or not) a particular case. Whether for error correction, principle, or seeking new precedent, Todd and Jody discuss preliminary questions and issues that might affect how a court reviews a case or how an appellate strategy might change the way a case is prepared. Dive deep into this episode to understand the motivations behind these appeals and ways to help clients make these difficult decisions.

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Why Appeals Matter

We thought we’d cover the topic of why appeals matter. Why would you appeal in the first place? We were talking before the show, every time someone calls us about a new appeal, we get the same question, “What are my odds of success?” We had Kent Rutter on a few weeks ago. We talked about Pam Baron. There are plenty of papers in Texas that you can find that tell you that the odds of success in any given appeal statistically speaking are pretty low. They’re less than 50% in just about any civil case across the board if you’re the appellant. Why would anybody appeal in such an uphill fight? The answer is there are a lot of different answers. There are a lot of different things for your clients to think about. Sometimes it’s a business decision, sometimes it’s a principle decision. We’re going to explore those themes a little bit more and talk about why you would take an appeal when you know your odds are already low.

We’ve all had the clients who have come in and said, “This is not a good outcome. I want to appeal. By golly, I’m right.” Often, I’ve had to tell clients, “Sometimes it doesn’t matter if you’re right.” The layperson tends to think of the law and justice as being black and white. So rarely is that actually true. We’ve all had to advise clients, “You may be right and they may be wrong, but you’ve got a human judge sitting on that trial bench and you’ve got three human judges sitting on the court of appeals. And by the way, in the trial court, you just had to deal with your burden of proof and evidence. When you get up on appeal, you have to deal with not just that, but a standard of review that is most likely going to be very unfavorable for you as an appellant, depending on which one applies.

That’s one of the big challenges, is getting behind the decision to appeal. It sounds harsh to say this, but clients have to get over this idea of, “I’m right and they’re wrong. I need justice,” to some degree. It’s our job to do what you’ve suggested, which is to explain to them the advantages and disadvantages to appealing and help them come to a rational decision that’s not emotional. That’s one of the hardest things to do in advising clients on whether to appeal.

That’s right. A lot of it depends on perspective, particularly for individuals. A lot of people who aren’t experienced in the law understandably come in with the idea that an appeal is kind of like a do-over. “I don’t like what happened in the trial court, so I get to take it to this other court and they’re going to look at everything and make the decision that the judge should have made.” Early on, you have to have that conversation of that’s exactly what they’re not going to do. Even in a scenario where it’s a de novo review, what they’re reviewing de novo is what the law says and what the record is. It’s kind of a do-over, but it’s not really a do-over in the sense that everything starts fresh. They’re looking at it with appellate eyes, which look at something a little bit differently than other people do. That’s always one of those first conversations you have to have.

Certainly with companies and with lawyers who have a lot more experience in the process, they understand that. Even then, to your point, sometimes explaining what the standard of review is, a lot of lawyers, even those who have done some appeals like evidentiary sufficiency, legal sufficiency and factual sufficiency standards of review are weird and complicated. In federal court, they essentially don’t have factual sufficiency, and in Texas courts, they do. Trying to explain the differences between those and how they shake out, depending on who had the burden of proof. At a certain point, you get to these weird discussions that only a few appellate lawyers can even follow because they have no idea what you’re talking about.

When they say, “I had all this great evidence,” and the answer is, “You did, and the jury heard all that. Here’s how the appellate court is going to look at it.” When I talk about City of Keller, their eyes start to glaze over, but those are important conversations to have because it is such a weird standard. “Well, they’re weighing the evidence.” They’re not really weighing the evidence. They’re weighing what the jury could have weighed in determining the impact of that. Those are always tough conversations to have, even with lawyers that do a lot of these because it’s such a very odd scenario.

I’ve said many times that appeals, at least for me, largely, begin and end with the standard of review. To practice appellate law, you’ve got to have a complete mastery of all the different standards and be able to advise your client, which should affect the decision whether to appeal. You’ve got to be able to advise your client what the standards are going to be for the issues that you think you’re going to raise. We can see from Kent Rutter’s study, and Pam Baron’s focus is a little different, but I think she would agree with this. You can see from the data how the differences in the standard of review play out.

Appeals largely begin and end with the standard of review. Click To Tweet

A lot of times, I hear people who disagree with an evidentiary ruling that was made by the trial court. One of the hardest things to do is to get them to set that aside for a second, not be as emotional about it, and understand that it may have even been wrong what the judge did. But the court had discretion on whether to admit this or not and how it treated the evidence. Not only that, but you also have to show that the error caused a reversible error in your case. “Reasonably calculated to cause and did cause the rendition of an improper judgment” is the reversible error standard. It goes back to what I was saying at the beginning about detaching oneself and taking a step back. To me, this feeds into the notion of why appellate lawyers are so important because we have the ability to do that.

We’re detached from the reality of we weren’t living, most often, the day in and day out of the case before it was being tried through trial. I always considered it my job to help bring people down to Earth, no matter what side of the case that they’re on, and manage their expectations for how things are going to go on appeal. The standard of review does make a big difference to me. If you’re dealing with evidentiary rulings, that would affect how I advise my client potentially on whether to appeal. Even though the issue might be important to the client, but you start getting up to, say, de novo standards. You’re right about de novo. It doesn’t mean a new trial. But in the summary judgment context, for example, a de novo, as a matter of reality, that standard of review does increase your chances if you’re the appellant.

Summary judgment is probably the best example of why appeals matter. In the old days, when I first started practicing, trial judges had this reputation of not wanting to grant summary judgments. It was before the days of all the extra interlocutory review that we now have available to us, and mandamus wasn’t very common. To some degree, you could even say that trial judges felt pretty insulated from any real risk of reversal. If they didn’t grant a summary judgment, then the summary judgment couldn’t get reversed, and mandamus wasn’t granted often. It was much rarer than it is now.

That’s not the case these days. We see more and more summary judgments being granted and some interlocutory review of the denials of summary judgments. That standard of review, with all the cases that are being disposed of in the trial courts and going up on appeal, or potentially going up on appeal, really is critical. I think the legislature has set it up with the extra review and the courts have set it up with the de novo standard. It’s not quite a do-over, but you are going to get the benefit of, in most cases, a three-judge panel who is educated on the law and is going to take the time to read and study your brief and your argument and really get it, and give what I think is generally going to be a fair shake.

I certainly don’t mean to suggest that’s not the case, but you’re right. It’s interesting how much the legislature has opened up interlocutory review over the last few sessions. All you have to do is go to the Civil Practice and Remedies Code 51.014 to see plenty of examples of that. I feel like every session they add another one or two, and then they’ve added permissive appeals, which is essentially everything in 51.014 that isn’t covered specifically. Now, you can use the permissive appeal process. That could even include the denial of the summary judgment. If you can find a legal question in there that needs to be reviewed, you can always put that up to the court of appeals.

It’s interesting how they continue to open those avenues up when it used to be a court would deny summary judgment and you go to trial and see what happens. There wasn’t much you could do about it because you didn’t have an avenue to get to the court of appeals. You could do mandamus, but those were virtually nonexistent or rarely granted. It’s only in the last 15 years that it has become a big topic of conversation at the Texas Supreme Court. Back to Michael Ritter‘s point where they’ve recognized this law and economics approach that sometimes the cost of proceedings outweighs the benefits of not having interlocutory review. They’ve opened these avenues through mandamus practice too. Although I feel like since we’ve had more interlocutory appeals, you don’t see quite as many mandamuses as you used to. At least it seems they’re more limited at least to the discovery and pretrial type rulings like that rather than the merits, although not always.

With mandamus, that’s one that’s its own animal. There are some instances in which it can be mission-critical, even though it’s got a super high standard of review, abuse of discretion for which there’s no adequate remedy at law. The clearest example that comes to mind of a mandamusable order is a discovery order that requires the production of privileged documents. It’s like the courts say in so many of those opinions, with Walker v. Packer and some of the classics. Once the genie is out of the bottle, you can’t put it back in. That’s probably a good example, and we can lump mandamus in with regular appeals and interlocutory appeals. That’s probably the best example I can think of, of why appeals matter. If you’ve got privileged trade secrets or any information that you don’t want for a good defensible legal reason to turn over to the other side, yet the trial judge has ordered you to do that, that’s a situation where not only does the appellate proceeding matter, but it’s almost critical.

TALP 16 | Why Appeals Matter

Why Appeals Matter: Law and justice are rarely black and white. You may be right, and they may be wrong, but you’ve got a human judge sitting on that trial bench and three human judges sitting on the court of appeals.

 

You can get the age-old question of, “What are the odds?” The average mandamus starting out, the odds are not so hot, but the case law has evolved and developed such that it recognizes these inherent rights and the practical difficulty in being unable to ring the bell. I do see appellate courts and the Supreme Court stepping into what might otherwise be considered a run of the mill incidental trial court ruling, being a discovery order, and being willing to protect the party’s rights in that situation.

Alongside that, you see mandamus cases where courts step in where the threat is to normal business operations. I’m thinking of apex-deposition type cases where it’s not necessarily going to turn over anything privileged, but the court recognizes it seems like almost a response to what were the Rambo tactics of the ‘80s and early ‘90s. You’d come in and notice the CEO for deposition and the courts have said, “That’s not going to work.” We recognize that there are these out-of-sync approaches that can penalize business operations and we’re going to step in and help when that comes up too. Those are the other types of cases where you see the courts willing to step in. Although under Prudential, and some of those more recent cases, they just have the benefit/burden determination for adequate remedy at law, which relaxes it a little bit. If you can show that the costs and the time involved in going forward without a ruling on this question are extreme and onerous, and these days, with what legal proceedings cost, that’s not that high of a bar, it makes it a lot easier to get a mandamus review.

I’m thinking of some of the insurance and windstorm cases where, ordinarily, you might not have thought that an appellate court, much less the Supreme Court, would step in and say that a trial judge or trial court abused its discretion in requiring certain things to be turned over. Let’s say an insurance file, something like that. We have these large-scale pieces of litigation where you’ve got so many resources, it’s not only limited seemingly to the resources that have to be expended in litigating that particular case. You’ve got the greater burden that sometimes falls on the system. You’ve got these giant waves of litigation that come out of, say, the hurricane insurance coverage stuff. It does seem like that standard, the adequate remedy at law standard, has been relaxed to some degree. But then there are also the situations like I was discussing about discovery, where the courts pretty much said, “If it’s privileged information that you’re being ordered to disclose, having to reveal that, you have no adequate remedy at law.”

It’s nice to see some development in the case law over time. I know the Supreme Court has said you can’t classify these things in broad categories, but there are some that you can look at it and say, “I don’t have to spend hours and hours developing this argument about benefits and burdens in this case,” because many cases before it, the courts have written under these circumstances, the litigant has no adequate remedy. You’re then down to, “What I really need to argue is that this was this an abuse of discretion.” When you’re dealing with a privileged disclosure situation, that’s an argument that you’re not cutting from whole cloth. You’ve argued the issues to the trial judge. In terms of the economics of bringing a mandamus petition, you consider it against the harm that would be involved in disclosing the documents. Most of the time, you’re in a position where you can put that together, even though it’s what we consider in our practice area, the closest thing we have to an emergency. You can still do it in relatively short order and not spend as much money taking that proceeding up for appellate review as you would have trying the case, which can happen in ordinary appeals.

The other interesting thing about mandamus that is different from an appeal is when you’re talking to your client, particularly if it’s a client that does more than the occasional appeal, you have to think about the risk of bad precedent. In mandamus, that’s not as much of a worry because typically if you’re going to lose your mandamus case, you’re going to get a two-line opinion from the court of appeals that says, “We’ve reviewed your petition for mandamus and we deny it without telling you why.” The risk that is going to backfire on you, that they’re going to say something like, “This is not privileged. The court didn’t abuse its discretion,” any of that is typically pretty low in a mandamus proceeding because it’s rare that they’re going to write much of a substantive opinion if they’re going to deny the relief. At the Texas Supreme Court, that’s a little bit different, but you have to think about that. If you’re in an intermediate court of appeals, you’re probably going to get a one or two-sentence denial that doesn’t tell you much of anything.

I’m always confused when the courts write the ones that are two, three, or four paragraphs and go into some of the reasoning why they’ve denied that petition when the end result is exactly the same as it would have been with that one or two-sentence order.

I appreciate it a little bit because it does give you some insight. It helps you explain to the client a little bit more because there’s nothing more frustrating than you’ve spent this time and money to do it. The client sees everything that’s gone into it. You’ve worked with them to massage it and then you go, “Here are the two sentences.” “Why did they deny it?” “Honestly, we don’t really know.” Although, in the cases where a lack of adequate remedy is almost presumed, you can assume that they probably didn’t find an abuse of discretion. But it still is frustrating for them to watch all the time and money that’s gone into it, and then you end up with two sentences and no real explanation at all.

Mandamus can be expensive if there are hard, close legal issues that you're dealing with at the Supreme Court level. Click To Tweet

It’s frustrating when you think you’re right, too. Unfortunately, I’ve been on the receiving end of some of those in which I was convinced that my position was the correct one. It’s disappointing to get that ruling in that situation. The thing is, you’ve got to explain it to the client upfront and say, “This is what could happen, even if we put all this money into it.” I don’t mean to say that mandamus is inexpensive. It can be expensive if there are hard, close legal issues that you’re dealing with at the Supreme Court level. The discovery stuff is easier. It’s the stuff where the issues are more subtle where you’ve got some unsettled law. The law is that the trial court doesn’t have the discretion to misapply the law, even when the law is unsettled.

If it’s a situation where there are close legal issues, you can wind up spending a lot of time and money to try and get it right. That’s something to consider in advising your clients. The answer on mandamus, whether it’s worth it, is like in every other case where you’re advising your client. It depends. How does it affect them directly. How are they situated if it’s a closer issue and will require a lot of time and effort to put together the kind of mandamus petition that has a chance to succeed? What does their economic situation look like? Can they bear it?

I come back to why appeals matter. You have to look at it from a client-centric perspective. Appeals matter to me and you because that’s what we do for a living. I happen to believe that the appellate system is critical. We’re seeing a lot of judges being attacked and the rule of law is sometimes being questioned. I’m a big believer in the entire system, and that system depends on not only what happens at the trial court level, but the appellate review system being in place and having integrity and working the way that it should. That’s sometimes a difficult case to make with clients, that the system works the way it should, because they often feel like they’ve been on the receiving end of some injustice.

I’m sorry to say that I’ve had more than one client come to me convinced that they got hometowned or worse, they were on the receiving end of some nefarious dealings between lawyers and trial judges. I don’t know how you handle that situation, but I always tell them, “You can’t focus on that.” It’s like when the client comes to me and wants to complain about their trial lawyer. I’m like, “That’s not what I’m here to do for you. My focus is on what can we do with what we’ve got right in front of us to come up with it and change the outcome and make it better for you.” Coming back to being client-centric, as the lawyer, you’re advising your client. You have to know your client. You have to know what their priorities are.

This is one of those situations where we’re trained, if you’re trained in a larger firm, you’re taught to document your advice to the client on actions that they take or that are in front of them. This is the reason why. First of all, you have to be able to defend your recommendation or your advice. But ultimately, what are the client’s motivations? What’s their economic situation? Apply that to the standard of review to come up with your best advice on whether an appeal would matter potentially to them, it seems to me.

A lot of times, it’s probably frustrating from a client perspective when they say, “Let’s appeal this,” and then they get a long discussion about pros and cons and all that. “Are you saying I can’t do it?” “Not at all. We want you to know that there are benefits and drawbacks. There’s a lot of risk, upside, and downside in this, so we have to lay it all out for you,” when they’re itching to get somebody to tell this trial judge that they’re wrong. In the hometowning scenario, those are always hard to walk through. Sometimes you have to say, “Even if you’re right, here’s how it’s going to get treated at the court of appeals.” I don’t know, I wasn’t there, I can’t tell you, but remember the people that are looking at this weren’t there either. Here’s what they’re going to be looking at under this particular standard of review. It may not come across on a trial transcript or a hearing transcript the way that it came across in the courtroom. It probably won’t, because for those of us who have read thousands of pages of trial transcripts, they rarely display the way that it’s been recounted to you. You can’t capture the nonverbal and the emotional things that go on in the courtroom on a black and white transcript. It doesn’t come across the same way.

That’s why we almost have a Spock-like, Vulcan approach as appellate lawyers because you do write your brief and you make it as interesting as you can. You try and give it as much emotion and punch as you can. At the end of the day, they’re going to read the same cold transcript. They’re going to have the same logical view of it that’s not going to be wrapped up in some of the emotional stuff that went on at trial. Although sometimes you can easily tell when things went on that were super emotional or things that maybe even crossed the line. That may be a basis for appeal too, because there was something that went on that was so inflammatory by one side or another, that comes across red hot from a transcript and how that went down. It’s going to be interesting to see in the age of Zoom hearings how some of that translates too. A lot of the stuff that was handled inside a courtroom and a lot of the nonverbal stuff that went on, I don’t know if that’s going to change when you have these remote hearings because you don’t have that same kind of thing that went on. Everybody has to be talking and everything has to be documented in ways that aren’t necessarily the same that they work when everyone is in the courtroom together.

TALP 16 | Why Appeals Matter

Why Appeals Matter: You can’t capture the nonverbal and the emotional stuff that goes on in the courtroom on a black and white transcript.

 

You can tell so much from a person’s body language, their whole body, not just what you see from the chest up in a Zoom camera shot.

You mentioned the clients who want to appeal on principle. Those are always hard to deal with.

They are. Principle always has a price, no matter how much money your client has, is what I’ve found. There’s a certain point where principle becomes an economic reality, even for a big client with a lot of money.

On the one hand, the client who wants to appeal on principle, that’s great because they’re motivated. They’re behind you. They want you to charge ahead. On the other hand, they’re not going to be emotionally detached. In a business litigation situation, many decisions are made for business reasons. If you attach yourself personally to the outcome of a case, like what tends to happen so often with these principle-of-the-issue kinds of matters, it’s harder to take that step back and be objective.

Another thing is, temperatures cool over time. Even in a short appeal, you’re usually looking at a year or a year and a half from start to finish in an intermediate court of appeals, and what was a real hot button emotional issue may look a little bit different a year and a half down the road, when all the briefing has been completed, you’ve had an oral argument, you’ve sat and waited for an opinion. It may not look quite as urgent as it did, which is another interesting aspect of that.

And your in-house counsel is getting questions from their board of directors about, “Why is this taking so long? Tell me again why we decided to do this and why we didn’t settle this case?” The more time that goes by, the easier it is to second guess decisions. Going back to bringing a lawsuit, hindsight is always 20/20. That is an issue with appeals. It can still take a very long time for appeals to get decided and it’s yet to be seen how the pandemic is going to affect the courts’ productivity over the longer term. In recent years, they have gotten better about getting cases decided more quickly.

Going back to the interlocutory appeals and mandamuses generally, although there are no specific rules that deal with this, as you pointed out, we have a greater interlocutory review. Those appeals are accelerated by statute and they’re supposed to be given priority. In theory, some of these decisions that are going up, are going to be decided quicker than they were before they were made subject to the interlocutory appeal statute. It depends on the issue that’s being reviewed. For a judgment from a jury trial, we don’t know how long that’s going to take. Some of that is going to depend on the complexity of the issues being presented on appeal. But often nowadays, if it’s not a complicated matter and you’ve got just a few issues, I’ve seen the appellate courts move through those cases at a reasonable clip considering their workloads. That is not an easy task.

A year or so ago, I was talking to a judge from the Second Court of Appeals and she was looking at her docket for a CLE. She said that more than half of her docket constituted things that were accelerated, whether accelerated interlocutory appeals, accelerated appeals in family matters, or criminal cases that are given priority. At a certain point, when so much of your docket is accelerated, nothing is really accelerated anymore, unless there’s a hard statutory deadline like in some of the family law cases. It is hard to pick how much you can accelerate things and then your standard civil case from a final judgment ends up at the bottom of that pile, unfortunately. It’s not accelerated under anything.

The trial court doesn't have the discretion to misapply the law, even when the law is unsettled. Click To Tweet

That goes back to the broader point here of why appeals matter? Appeals do matter, but some appeals matter more than others. In these accelerated appeal situations, you’ve got to give them, the court does, the statutory priority. They matter from a client’s perspective because it is like mandamus, it is an opportunity, and permissive appeals fall in this category too. It’s an opportunity to deal with a narrow issue in the case that can have ultimately a big effect on the broader outcome.

In that sense, they’re not going to be as costly. You’re not dealing with the final judgment with a giant record, days or weeks of testimony. I don’t mean to diminish appeals from final judgments because so often what we see with those is that’s where the real money is. The final judgment is awarding millions of dollars in damages to someone. The reasons why appeals matter, it not only goes back to the client’s intrinsic motivations and their situation, but it also to some degree is going to depend on the nature of the appeal and the procedural posture of it. Can you get in and out relatively quickly and get back to the business of not only business, if you’re a business that’s taking an appeal or defending one, but also the business of getting the case resolved on a much broader scale?

For non-businesses, it’s important too because if you’ve got a probate matter or family matter on the civil side, so much of aspects of people’s daily lives are wrapped up in those things. If you have a divorce or a child issue that hasn’t been resolved and has been sitting out there. If you have a probate issue where you’re handling a loved one’s estate and you’re fighting with family members, getting those things resolved as quickly as possible is hugely important to these people. Sometimes that’s the worst day of their life, having to deal with those issues. Their first and only interaction with the court system, having to bring these things up, it has so much personal impact where you set aside all the business decisions.

Those are the hardest appeals a lot of times, maybe not on the legal issues, but the things that are involved and wrapped up. You’re putting someone’s life on hold for a year and a half or two years trying to flush out these things that are critical to their lives and their livelihoods and their personal well-being. That’s such a huge responsibility and one that we take very seriously. It’s hard to watch those cases go forward when they don’t move the way you want them to through nobody’s fault. That’s just the way that the system works. It works slowly. Those are good expectations to set out at the outset. We’ll move as quickly as we can, but you have to understand.

Talking about that brings to mind extensions. The appellate conduct standards require you to agree to all reasonable extensions essentially. Those are always hard conversations to have with clients that don’t deal with this. “We need to oppose. We need to move this forward.” I’ve heard it on this show a bunch of times, and I know it from people I talked to, the reality is you’re going to get the court to give the other side multiple extensions if they ask for them, even if you oppose them. Telling the client, “We can’t oppose this without looking like jerks,” is a hard conversation to have. It also reflects the reality that appellate courts understand, and they’re going to be as lenient as they can be because people have things that come up. The litigants have things that come up, and they’re going to let that happen until it does start to become prejudicial.

I’ve only opposed a few requests for extensions. Every time it was something like that, it was either the sixth or seventh request for an extension, or there was some issue that was going to prejudice the client so much that I felt compelled to file a response and explain all that. In a couple of those, they did get granted over the objection, but I felt like at least the court could understand why we were doing it because there was something that needed to be resolved that had been hanging out there. The effect of it was prejudicial, adding another 30 days onto this when you’ve already had six months of delays. I try not to do it, but I think those are the rare scenarios where you do.

You touched a little earlier on the concern about making precedent. That’s something that we can spend a minute or two on, the idea of why appeals matter. An appeal may matter beyond the parties. It could be part of a broader industry issue that there might be some motivations for appealing, and probably can come from either side. It would be more likely to come from the appellant’s side, but if you’ve got opposing sides of an issue that cuts across the industry and it has a pretty broad impact, you might see appeals in cases that you would think might not be worth it otherwise because somebody’s out looking to make some precedent. Those are always interesting situations when they do come up, but you’re not dealing with the ordinary client situation.

TALP 16 | Why Appeals Matter

Why Appeals Matter: There’s a certain point where a principle becomes an economic reality, even for a big client with a lot of money.

 

Usually, there are a lot of external forces in play and the people that are dealing with those decisions do have to evaluate, “What’s the risk of making some precedent here that is going to be unfavorable?” not only to this client but to other clients that I have. That’s definitely worth mentioning. I don’t want to say it doesn’t come up all that often. It depends on your practice. But it’s something to be mindful of out there in terms of do the appellate courts matter? Yes, they do, because they’re potentially interpreting the law in a way that’s going to have these kinds of lasting and broad effects on a lot of people.

In Texas, it’s particularly critical because in a lot of states you have one intermediate court of appeals that’s statewide with a certain number of judges. Here we have fourteen independent intermediate courts, two of whom are overlapping jurisdictions. It does matter in those scenarios because you can have a significant impact on your case and hundreds if not thousands of other cases in any court. What one court does, it doesn’t mean that the other thirteen are going to follow along. It’s easy to find a lot of conflicts in these cases over a lot of different issues. You have to think about that. You add to that, Texas has a pretty strong docket equalization system. It may be that you think, “Let’s test this out in the court where we’re going to file this and see what happens.” Suddenly, you’ve whisked away to some other remote court that you weren’t planning to be in, and they’re supposed to decide it under the law of the transferor court, but unless there’s pretty clear law on point, how do you get to that? Often, an issue gets taken out to some other court. If the first court hasn’t decided it, then they’re going to decide how they’re going to decide it. There’s not a lot you can do with it, which adds a whole other interesting wrinkle to those types of questions.

It was always taught that there’s one body of Texas law, but it’s always surprising to me when you get courts that are diametrically opposed on certain issues. That’s one of the ways that cases get taken up to the Texas Supreme Court, the law is not uniform. The development of the law is an important function of appeals. You see it from a broad pattern, but it all starts with individual cases. It comes down to what are your client’s interests, not only in their immediate case but do they have a broader interest that can impact jurisprudence throughout the state, starting with the court of appeals that you’re going up to and potentially up to the Supreme Court?

Those are always good things to keep in mind because if you do have one of those cases, that’s an important discussion to have from the outset. If you’re going to do this, you need to probably be willing to see it all the way through to the Texas Supreme Court because, if your true goal is creating precedent, then be prepared that this is the process you’re going to need to take. Here are the expenses that you need to be able to anticipate because with fourteen intermediate courts, getting one court to go along with you or not go along with you is not the end of the battle if this is what you are after. It may be the law in the Dallas Court of Appeals, may be the law in the Fort Worth Court of Appeals, or Eastland or wherever, but there are a lot of other places in the state where that’s not going to be the case. You have to have your eyes on that final prize of getting the Texas Supreme Court to weigh in and ultimately decide because otherwise, it’s not going to do the good that it needs to do potentially.

Agreed.

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