TALP 25 | Trial Counsel

 

So often, trial lawyers are expected to do it all when trying a case—prepping and examining witnesses, arguing motions, making objections, and preserving the record. This translates to early mornings, late nights, and opportunities for things to get overlooked. Having another set of eyes (and a different skill set) can not only lighten trial counsel’s load, but ensure a better outcome for the client. This is where appellate counsel can really add value. In their 25th episode, Todd Smith and Jody Sanders discuss ways that having appellate counsel involved at different stages of the litigation process can streamline the proceedings, create opportunities to determine legal issues early, and provide a more focused strategy to survive the trial and appellate process. Together, they share their own experiences in working with a trial counsel, what it is like for them individually, and how appellate lawyers bring value to trial teams. Todd and Jody also dive deep into the trial lawyer-appellate lawyer relationship when taking over a case and when it goes up on appeal. Follow this episode to learn tips that benefit trial and appellate counsel and, most importantly, the client.

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Listen to the podcast here:

Working with Trial Counsel: The Dynamic Between Trial Lawyers and Appellate Lawyers

We’re doing a guest-less episode. We’ve done this a few times and it’s gone well when we’ve done it. We’ve been so blessed by an abundance of outstanding guests. As we move along, we may continue to do some of these guest-less episodes from time to time when the mood strikes and the calendar works out. The readers get me and you, Jody.

Hopefully, they won’t mind.

One thing that’s nice about just the two of us talking today is we get to reflect on the fact that when this episode is released, it will be our 25th episode. Who would’ve thought?

It also means that we’ve been doing this for almost six months, which is also crazy to think about.

I’ve been posting on social media about our inaugural recording session at the Supreme Court courtroom and reminiscing about those days of being able to go out and see people face to face.

Although it’s worked out well because we’ve had people with a lot of time on their hands and everybody knows how to use Zoom now. We’ve been able to get some guests on here we might not have otherwise gotten, which has been fantastic.

With people having that experience with Zoom, we’re not going to have nearly as many technical issues going forward. It’s not a foreign concept. We’re going to continue to do that. We’ve talked loosely about trying to do some live episodes. I do think when we can resume having the UT and the Advanced Appellate seminars, it would be fun to do a live episode at those seminars. Those of you who are on the planning committee, if you happen to be reading this, keep us in mind. We will do it on our own.

We’ve got to change things up after a while, but for the foreseeable future, we’re wedded to Zoom as our recording format and that’s okay. It’s working out. Twenty-five episodes, we’ve covered the spectrum. We’ve done more or less what I thought we would. We’ve had a good mixture of judges, practitioners, some court staff. We’ll be looking to do some things in the criminal appellate law area in future episodes. Some things that for most of us, like for me, was a general civil appellate practice, I don’t see day in, day out. I’ll tell you it’s been educational to have some of these people on.

We have dipped our toes a little bit in federal court too. We’ll be doing more of that, hoping to get some fifth circuit and federal court perspectives that even though we do it in some of our practice, a lot of what we’ve done so far has been geared more towards state law practice naturally. There are so many more opportunities in state court for appeals, but we’re going to move towards some of that. We’re continuing to focus on things like technology and emerging trends in the practice. That’s something that I learned a lot from every time and enjoy getting to hear from people who think about things in ways that I haven’t even considered.

For the future, if you’re liking what you’ve read so far, we’re going to bring more of what you’ve read too. We are going to try to cover some things that we haven’t yet had the opportunity to get to. We consider this to be ongoing and we appreciate everyone reading and we’re going to keep doing this as long as we can. We have no sign and no desire to stop.

There are plenty of great trial lawyers out there that do great jobs making appellate records, but it's always nice to have another set of eyes. Click To Tweet

If you guys have ideas or things you want to know, contact us through any of the ways. Leave us a review on the Apple Podcasts app, which makes it easier for everybody to find. However you want to reach us, we’d love to hear from you. We now have a dedicated email address. It’s Hosts@TexAppLawPod.com, but you can still get us on our individual email addresses too, or through social media.

We’ve been active on Twitter and we’ve got a Facebook page, but now for grins, at the urging of Mark Trachtenberg, we created an Instagram page and thinking about that, there is some use for it because we’ve got some pretty cool imagery that comes out of Podetize, who handles our production. It’s a nice place to share that stuff. It’s visually very appealing and it’s very shareable on social media. We’ll be continuing to add to that Instagram page as well.

It’s not going to be pictures of Todd and me on our split Zoom screen recording, I promise.

I can put up some pictures of me and my swag.

Todd has a Texas Appellate Law Podcast shirt that I’m jealous of because I don’t have one yet, but we’re trying to figure out some swag that we can have for the show for guests and anybody else who wants it.

We’re definitely looking at that. The other housekeeping thing to mention is that we’ve finally got our webpage done to where all our previous episodes have their own posts. The post, if you look at them on the webpage, you can listen to the podcast straight from the webpage and links toward the bottom of the episode. You can visit that page at TexAppLawPod.com for all the details. With that, we can transition into what we intended to talk about, which is working with trial lawyers or trial counsel. Jody, I thought a lot of our episodes would be interesting to trial lawyers as they’re listening to them, but we, appellate lawyers, tend to get down and nerd out in our own little language sometimes. This one, in particular, I thought might be useful to trial lawyers to read because some appellate lawyers do things differently than others.

One thing that our perspective, that we bring here, is that we’re in different practice settings. You’re in a fairly large regional firm with about 150 lawyers and I’m practicing in a solo setting again. Because of that, we certainly see things from a little different perspective even though the day in, day out of what we do is very similar. With that in mind, I thought we would talk about our own experiences in working with trial counsel, what it’s like for us individually, and starting with how appellate lawyers bring value to trial teams. The trial lawyer-appellate lawyer relationship is a lot more than the appellate lawyer taking over the case when it goes up on appeal. I teach and preach this a lot that I would like my trial lawyer clients to reach out to me far sooner rather than later when they see things that could wind up leading the case to appeal. What about you?

That’s absolutely right, because so often if you wait until, “We’ve got a bad judgment or a bad jury verdict against us,” and we come in and say, “We’re here to help you,” there are so many things that could have been done differently, which is not a knock on a trial lawyer to say that you’ve missed anything. When you bring appellate counsel in early in the case, whether it’s before a trial, or during a trial at the dispositive motion stage, we see things with a different perspective. We see things in ways to preserve, make different arguments at different stages that if you’re the trial lawyer who’s worried about developing the facts of the case, you may not see it that way. You can find a lot of opportunities and especially now in Texas, in particular, there are so many opportunities for interlocutory appeal.

There’s a whole new permissive appeal statute where you may be able to take a legal issue and carve a big chunk or maybe all of your case out early on in one of those settings that you may not even be aware of. Having a set of eyes like that helps. Having people who can help you think through what dispositive points are or what they might be and how to develop those facts and discovery and how to come up with some legal issues. I remember years ago at one of the advanced appellate CLEs, somebody did a presentation on the idea of basically trying your case on legal issues. Figuring out early what those were. At the same time, you’re developing your trial strategy, developing these legal issues, and keep hitting them throughout the case.

You may be able to knock pieces out of that. I’ve always thought that is a lot of what appellate counsel does in the trial stage. One of the most important jobs is to pick out the roadmap of, where do we go from here and what are the legal things that we can help you with? It takes the burden off during trial. In particular, for trial counsel, you don’t have to worry about making sure that the record’s preserved because you’ve got somebody sitting behind you. That’s their job. Your job is to make sure you’re talking to the jury. You’re doing voir dire. You’re getting your witnesses prepped at night. Meanwhile, we’re working on the jury charge.

TALP 25 | Trial Counsel

Trial Counsel: One of the most important jobs is to pick out the roadmap of where you go from here and the legal issues you may need help with.

 

We’re listening with a second set of ears to the rulings, making sure that we’re filing the stuff that preserves the arguments you want to make or that what’s coming across on the transcript makes sense. It’s going to be something that the court of appeals is going to be able to see. We can help you make sure your exhibits are all in the way they need to be. We bring a lot of that so you don’t have to worry about it. You can go back to your hotel, bring your witnesses in, do your witness outlines, go through the exhibits, sit down with your paralegal, make sure everything’s set for the next day. You’re not then having to stay up another 2 or 3 hours and worry about the other stuff. We add value that way too.

I want to go back to what you said about trying your case through the legal issues. That’s something that I like to try and do. Whenever I get brought into a case early enough to have an influence on the theories of the case and know, whether it be at the petition or the jury charge stage, in my view it’s a completely different way of thinking. You’re thinking about things from a legal issues perspective or as more in line with the trial lawyers. You’re thinking about things from the factual perspective. It’s exactly right that you can find a way to get the case resolved either on summary judgment, directed verdict or whatever dispositive motion. If you’re busy developing the facts of the case through depositions and written discovery and so forth, it’s going to be a lot harder to be able to see those opportunities.

It’s such a different skillset, frankly. This has been quite a while ago, but I reached the conclusion that I wasn’t cut out to be a trial lawyer. I enjoyed doing the legal issues work a lot more. It fit my skillset better. For me, the sweet spot in the law is talking to other lawyers and judges about the law and how it applies to the facts rather than developing the facts. We see so much specialization in the law now. The only generalists you see any more are the ones in smaller towns that don’t support having a specialist in that market. There are exceptions to that, of course, but the lawyers who generally do the best in their practices are the ones that to some degree specialize, whether they’re board certified or not.

That to me is the fit of the two roles. If you have somebody who excels at developing the facts of the case, for me as an appellate lawyer, I love that. If they value what I do as being someone who has a knack for developing the legal theories and presenting those to the judges and arguing about it to whichever tribunal you’re in front of, that’s the ideal client relationship. It’s working with someone who doesn’t want to mess around with the legal stuff, who excels at dealing with the facts or has confidence in me or someone like me that they’re going to be able to have their back as you’re suggesting on the legal stuff.

When I first started doing appeals, working with David Keltner, he talked about what an appellate lawyer does. He has always said, “It’s my job to talk to judges. I’m a lawyer that talks to judges.” That’s always been the perspective that I brought to it is if I’m in court doing something, more often than not I’m going to be directing whatever I’m talking about to the judge. Whether it’s some motion, some error preservation issue, some jury charge issue. Those are the roadmaps that I’m looking at, the signposts that I’m looking at when I get brought in. Somebody else has been taking the depositions, pulling the video clips that they need to pull, arguing about that, arguing about what evidence needs to be admitted.

That sometimes varies if there’s a legal reason, but we trade off on that taking the witnesses, doing that stuff, handling all those things. We can complement each other well when you divide up the roles that way because it plays to the strengths of each. There are plenty of great trial lawyers out there that also do great jobs making records in appeals, but it’s always nice to have another set of eyes. Even if you’re a great trial lawyer, that’s perfectly comfortable doing that, it’s nice to have somebody else to give you some support so you’re not carrying the whole load on your shoulders.

We covered some of what I would list out as the ways that an appellate lawyer can get embedded in a trial team, case theory strategy, you mentioned error preservation. We talked a little about potentially dispositive motions. To me, summary judgment is one of the natural entry points of an appellate lawyer. At that point, you’ve got at least enough of the facts developed, ideally where you can beat an MSJ or the theories of the case are developed well enough where you think you can get a summary judgment as a movement. Often there are things beyond that threshold issue of whether there’s a genuine issue of material fact. If you’ve got legal issues that tie into that or if the law is in any way uncertain, then the appellate counsel isn’t in the best position to argue those issues to the judge and to even identify those issues in the first place.

One of the things that we in our practice area do and do well is stay abreast of the trends in the law and know, “There’s a case out of the 13th court. We’re in the 13th court. The case out of the 13th court said this. We need to make sure that this case is brought up because it’s going to be very instructive to this judge who’s sitting in a district court within the 13th judicial district.” In my experience, what I call fact lawyers are a lot of trial lawyers don’t have the time to stay up to date on the latest and what’s going on with cases coming out of a certain appellate court. If they do, I’m impressed, but their dockets are so busy. As I like to say, this is one of the pitfalls. They’re trying to do your own appellate work as a trial lawyer. The facts don’t start coming to the extent that nobody sends faxes anymore. The discovery deadlines don’t stop. Your hearings are still going on. You have a hard time finding that quiet time that’s absolutely essential to being able to do effective appellate work. Even if it’s appellate trial work like summary judgments.

Another thing that we’ve certainly seen in the last few years, there are so many new procedural mechanisms that look like dispositive motions that weren’t. I remember speaking on the anti-SLAPP statute at the advanced appellate course. It was right when that was starting and nobody had heard of it. Now you’d be hard-pressed to find an appellate lawyer probably or a trial lawyer in Texas that hasn’t had a case where it’s at least come up once, maybe twice. I feel like that statute swallowed the whole court system. Having somebody that is conversing on those and following the trends on it made a huge difference for a lot of people.

It’s like you filed some breach of contract lawsuit and all of a sudden, you’ve got an anti-SLAPP motion going, what the heck does this have to do with two businesses suing each other? It turns out it may have a lot to do with it. It may end up tying up your case, appeals, motions, and hearings and all that for a year before you even get down to having discovery in the first place, which is wild. We’ve got the Rule 91a motions now that have appeared in Texas. In the last few years, you’ve seen all the different experts report things that have come out, both in med mal and outside of med mal. Having somebody that’s conversing on those things from a procedural standpoint makes a big difference too.

Nine times out of ten, it’s better to have the trial judge deciding the fee issue than the jury. Click To Tweet

We’re going to keep agreeing with each other.

Maybe we should have had a trial lawyer on with us to say we’re not thinking about it the right way.

I’m going to dig around and get one of my trial lawyer friends to come on the show and give a different perspective on this now. Legitimately, to that point, I can remember some conversations and some of these were online and we all know how that goes. Some of the things that we’ve been talking about here poo-poo’d online. It’s like, “Any real lawyer can do that stuff. I can preserve my own error. I can write my own motions and responses.” There’s every appellate lawyer’s favorite, “I tried the case. I know it the best, I should be the one to handle the appeal.” Even if you gave over the briefing to someone, I still know what’s the best. I should be the one to argue the case.

There are extremely talented trial lawyers and I know there are people out there that can do those things as well as I can. That’s great. If you don’t have to, it’s like the old adage that doctors make the worst patients. I feel like sometimes the person that tried the case, you get close to it, and naturally, you should because you’ve spent however many years of your life developing this. You’re tied in with the client. You’re wrapped up in all of it. Sometimes you need somebody else to come in and say, like Kent Rutter said, “I understand that you feel like the court did you wrong when they let this piece of evidence in. At the end of the day, it’s not going to win on an appeal even if you’re 100% correct on it.” I feel like we’re often the Monday morning quarterback who has a cold bucket of ice water to throw on all the great arguments.

It’s like, “That’s a great argument, but I worry a little bit about the preservation,” and that’s always a hard thing to have a conversation about. I feel like it’s our job to say, “You’re right. The trial court got it wrong. The law’s totally on your side. You argued it well, articulated it well, and it still is not going to win on appeal. It is not going to get the court to turn it around.” Those are always hard conversations to have both with trial lawyers and clients. Sometimes it’s hard because the trial lawyer may be the one that brought you into the case, but you still have to do it. It’s fraught with peril, but it’s an important role that we have to come in and be the people that poo-poo’d all the good ideas sometimes. At least that’s what it feels like from my perspective. That comes in after you’ve won a big trial or lost a big trial and tells you all the things that you probably don’t want to hear.

We need to get Scott on the show sometime. Those are the best lawyer clients though, the ones that recognize that it’s like going to the doctor. It’s not a lot of fun, even if it’s routine, but sometimes you never know what you’re going to catch in that doctor’s visit. Your blood pressure’s a little up or your enzymes are elevated or whatever. Sometimes you’ve got to have, even if it’s preventative medicine and I can kill the analogy there. The best trial lawyer clients that I worked with are the ones that know they might not like what I have to say. They also know that, and anybody in my role is looking out for their client in a way that maybe they can’t for all the reasons that we’ve talked about, the lack of experience with the issue. It almost sounds like a shortcoming.

I don’t mean it that way at all. The lack of focus on the issue. I’ve been thinking a lot about focus and how challenging that is in this world. Having somebody who can focus on this narrow sliver when it can mean the difference between, in a number of zeroes after a number that’s awarded in a judgment, it’s so significant. Of course, you get into the issue of, how does this get funded? We can probably talk about that a little bit before we’re done, too. I’ve got a list of things that I tell people about as far as ways that an appellate lawyer can help. We’ve covered a lot of them already, but we haven’t talked about Keltner and jury charges. Except for maybe the simplest car wreck cases where you’re dealing with truly PJC charges, I find that there’s always something to talk about in a jury charge. It’s never cut and dried. I happen to sit on the PJC committee for the business and insurance. It’s super interesting to hear the debates going on in that room when even the committee is getting together to talk about what the law is.

There are procedural aspects and substantive aspects to the jury charge. Frankly, even sitting here, having done this for a long time, and read every Supreme Court charge or case multiple times over the years, I still don’t know that I can articulate a clear standard for when you should object and when you should submit. I always tell people, “If you have a question about whether it’s an objection or submission, do both.” In one case, the Supreme Court says, “You barely have to do anything to preserve error.” In another case, in similar circumstances, they’ll say, “You waved there because you didn’t have a cohesive standard.” Having somebody there to say, “There’s no clear answer. You need to do all these things. It may seem ridiculous, but at the end of the day, there’s a lot of value to that.” If your charge gets screwed up, even through no fault of your own, and it’s not preserved the right way, that’s an easy way for an appellate court that doesn’t want to dig into those issues to cut it off and put you out.

You made us obsolete by telling them to object and request. The whole point of this episode went down the tubes.

How you do that also matters. I’m not going to give away all the trade secrets in this, but it is true. There’s a lot to that. It goes back to your idea of trying the case on legal issues. Figuring out early on what those are going to be and what the charge looks like. I’ve always told trial lawyers, and I know a lot of people say this, when you bring your lawsuit, sit down and draft your jury charge at the same time you draft your petition and think about what it’s going to look like. Those are the things you’re going to have to prove. You’ve got that as a working guide. Of course, it’s always going to change as the case goes on. Having someone there with you during the trial, sitting, watching what’s going on, listening as the evidence is presented is also valuable. When it comes time to make the charge objections, we have a lot better idea of what those are going to be.

TALP 25 | Trial Counsel

Trial Counsel: If you’re busy developing the facts of the case through depositions and written discovery and so forth, it’s going to be a lot harder to be able to see legal issues.

 

It’s amazing how rarely that happens, of someone drafting the charge upfront. It’s been said on the show before that the reason for that is clients don’t want to pay for it.

Sometimes attorneys don’t have time. There are lots of legitimate reasons.

There is, but after a while, you need to do things for the betterment of your case. If a lawyer is going to draft a charge, they should get paid for it. Unless it’s a run-of-the-mill car wreck case, there’s no such thing as a straight-up PJC charge. That may be too extreme, but most cases aren’t. The cases that are going to trial are not. I would tell the trial lawyers reading this, follow that advice, even though it’s conventional wisdom, but nobody does it. You’re exactly right. That is a roadmap for your case and handling the fact issues of the case so that when you get to trial, I need to have evidence of the third element of this cause of action without getting through trial and realizing, having that oh-crap moment. You’re thinking that you don’t have it and then asking you or asking me to try and pull it out of the fire.

Even little things. I’ve seen a number of cases, where even if the charge legally is technically correct, everybody was tired, it was 2:00 AM. The way that it got conditioned with the numbers got all wonky and that can create all kinds of problems that you don’t think about truly because somebody made a typo. You’ve conditioned your punitive damages on a theory that doesn’t support punitive damages purely by accident. The court said question four instead of question six or you’ve conditioned some other finding on another finding and you’ve put the wrong number and then you’ve got a huge problem. Unless someone is reading every line of that carefully and flipping through that right before you make your charge objections to the court, that stuff can be deadly.

A lot of what we do and another natural entry point for me is coming in at the verdict stage or even post-verdict. At that point, somebody certainly realizes maybe they’ve gotten a bigger verdict than they expected. They’re thinking, “Maybe there’s going to be an appeal.” They might not have thought that. JNOVs and new trials are not granted all that frequently, but I like to tell clients, “You need to look at all your options and you only have so many cracks at this. If you’re the receiving end of a bad verdict, it’s time to start evaluating these options.” The whole idea is still, even at this stage they’re trying the case on the law, is still valid because you still have the chance to raise legal issues.

The facts may be what the facts are and they’ve been developed and presented to the jury. There’s potentially going to be some legal issues, even at the post-verdict stage that are going to get you relief. The most obvious are things that most trial lawyers are going to know about like damages caps and things like that. It’s another prime opportunity. If you haven’t gotten an appellate lawyer involved in the case up until that point and something happens and you have that a-ha moment, there might be an appeal. Your next thing to do probably ought to be to reach out to your trusted appellate counsel to see if you can get their help dealing with that.

It could be defending it too. It’s commonplace for appellate lawyers to show up at that stage of a case. If you’ve tried a case without the presence of any appellate lawyer, except for maybe at the charge conference, and the other side brings their appellate lawyer, you might want to think about that too because there’s a reason why they’re doing that. You wouldn’t want to get caught flat-footed if there was something as a trial lawyer that was missed in the heat of battle or that you don’t have the depth of knowledge about. That would be probably another good time to do it.

To that point, post-trial, there’s a whole new set of error preservation challenges that come up. You also have supersedeas issues that are going to start up. Judgment security, judgment suspension, judgment collection. That’s a whole set of sub-issues that come up that you’ve spent all your time and energy trying a case, getting to verdict, which may be super favorable to your client or maybe very unfavorable. Now you’ve got to switch gears completely from proving the facts and having the burden of persuasion to getting into the standards that have review and all the mechanics of, “How do I keep them from going after my client? Can we post a bond? How much does the bond have to be? What do I have to prove for net worth type stuff and take advantage of it?” That’s a whole subset of stuff that creates all kinds of issues that having someone with an appellate perspective can bring a lot of value there because the nuts and bolts of that are mind-boggling.

I know you do a fair amount of that work and I’ve been doing it too. I had a lot of experience doing that work. We had a net worth contest hearing that went on for the better part of two days. You’re talking about having a forensic accountant possibly in place and it’s almost like a mini-trial. Somebody who’s going to ask the court of appeals to review that decision and the process for that is pretty different. It’s not an ordinary appeal. It’s a motion for review. If somebody doesn’t like what happened in the court of appeals on that, then the next step is a mandamus in the Supreme Court. You can almost make a specialty if you wanted to out of doing supersedeas work because it blends all these things together. Even if you wanted to force yourself to go back and do some fact lawyering, as an appellate lawyer, that would be a good way to do it.

Maybe with exemplary damages, you’ve had net worth come up before, but even that net worth is potentially a little bit different standard than the net worth you’re talking about for a supersedeas bond. You’ve got to develop all that, have potentially a completely different expert witness come in. It’s a whole lot of stuff that you think about. Not to get us too far off track, but all along the way at every stage that we’ve talked about, there’s also potential places for a mandamus. We haven’t addressed that, but that’s another place. I feel like the places that you see the most successful these days in Texas are in discovery fights, which is long before you even get to a trial. That’s a place that you may want to think about having an appellate lawyer, at least in your contacts.

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Maybe it doesn’t make sense to hire someone to do the whole thing, but the process of putting together the record, getting everything ready, prepping the brief to look like a brief that’s going to catch the court of appeals attention. The odds on a mandamus are so low. Having somebody you can turn to to even be a second set of eyes is valuable in every stage where you may have a mandamus issue come up. Even after you’ve gotten a jury verdict, if the court grants a motion for a new trial based on certain sets of reasons, you also have a mandamus there. That’s almost like a mini appeal with factual sufficiency review as if the thing was up on appeal, even though you’re still in the trial court and you’re hanging out in limbo because a new trial has been granted.

The scope of review and that situation is going to be the whole record. You’ve got to have the whole record right there in front of you. It is like a little mini appeal and it’s a ton of work, but you think about what’s at stake. Are you going to have to try the case again or not? To that, I will add that one other way that trial counsel should get an appellate lawyer involved is in trying to estimate the amount of appellate fees to ask for and the judgment. If you’ve got a theory or you’re opposing a matter in which someone’s going to ask for appellate attorney’s fees, the whole area of proving up attorney’s fees is going through this transformation or the Rohrmoos case. I’ve studied that case. I was scratching my head about how it affected appellate fees and then I found out that the Supreme Court has addressed that issue and said, “It’s not a pure low star analysis in doing prospective appellate fees because you’re being asked to predict the future.” We can do a whole episode on whether our system for getting appellate fees in the state courts is good or not compared to the federal courts.

To that point though, one tendency that I see with trial lawyers is to underestimate the amount of fees that they should ask for handling an appeal. If nothing else, pick up the phone and call your friendly neighborhood appellate lawyer as you’re going to trial to tell you here’s how complex the case is, how many days of trial. You can generalize from those things a little bit on the theories to come up with some numbers and have it not be $5,000 for the first appeal and $5,000 to the Texas Supreme Court. They’re these wild numbers that I see inserted into blanks. Sometimes it’s the jury filling in those blanks. Sometimes it was the judge. When you think about what’s at stake these days, if you’ve got a theory that warrants the recovery or allows the recovery of attorney’s fees, yes, you should get the maximum that you can get reasonably for appellate fees and you should break it down by stages. To do that properly, it would be very beneficial to have the input of someone that does it day in day out and knows what things cost.

Even as a consulting role, call somebody up and discuss it because if you’re the testifying expert, that’s fair game. “I called up some appellate lawyers and talked to them and that’s formed the basis of my opinions and here’s what I’ve come to.” You should do that. You’re right. I remember when I started practicing law in 2005, you would see those affidavits exactly like you’ve talked about. It’s $15,000 to the court of appeals, $5,000 for a petition for review, $5,000 for a brief on the merits. I still see those same affidavits floating around and the numbers haven’t changed in years and it’s a multiple of that, but it’s not two.

We could get me on a big soapbox about that issue. We’re going to do some episodes specifically addressing attorney’s fees and appellate fees to try and help educate our trial lawyer cohorts. I know we can move on from this topic, but the one issue there is, part of, we spend all this money trying the case. There’s a perception of we can’t look greedy or we need to be careful what we ask for with the jury. The fees of an appeal being an afterthought is not doing a service to the client. It’s important to think about it. In the right case, I would even say, “Yes, call up your friendly neighborhood appellate attorney.” As an expert testifying, you can rely on that information, but if it’s a big enough case and there’s enough at stake where you’re asking for six figures worth to the appellate attorney’s fees, designate an appellate lawyer to come and testify, then we can go down the road of should the judge or the jury be deciding appellate fees.

That’s a question that comes up in every trial. There’s a lot of different good and bad answers for that. That should be a consideration in every trial because when you’re asking for a small amount, asking a jury for attorney’s fees is one thing, but the bigger the numbers get, the harder question that it becomes.

You could streamline a case so well if you took attorney’s fees away from the jury and let the court decide that issue. You can do so much on submission even. You can take a lot of the expense of the trial away. If you thought about these things as a trial lawyer in the beginning, it tends to be an afterthought and it’s something that’s tacked onto the end. This is the strategic thinking that we’re talking about. Being able to help separate the wheat from the chaff and get right down to the important issues are going to make a difference. Nine times out of ten, I would say I would rather have the trial judge deciding the fee issue than the jury for several reasons. I realize that there’s room for disagreement on that. We’ll save that for a future episode.

I agree with you in principle because at a certain point a trial judge is rarely going to be shocked by attorney’s fees. I’m certain there are numbers and rates and things that will shock a trial judge, but a request for who charges $400, $500, $600, $700 an hour in a major metropolitan area and has spent thousands of hours on a case, to a lot of the trial judges in Dallas, Houston, Austin, even cities that are not big cities, that’s not going to faze them. When you’ve got a jury that’s been sitting there and you’re saying, “Here’s our damage model. It’s $1 million. By the way, our attorney’s fees are $750,000.” There’s something to that that you’re right. It at least raises something that warrants a conversation about it, even if you may decide to tip it to the jury in the end.

The greater risk in all of this is if you don’t prove them up correctly, you’re looking at possibly having to retry the issue on remand. It winds up being an efficiency issue, even though you could spend more time and money on it and getting help up front. If there’s something wrong, if there’s some reversible error, if the evidence isn’t presented appropriately or Rohrmoos isn’t met or whatever, the remedy is you’re going to have to retry fees. What tends to happen is that people are so beaten down by that point that they don’t want to try it again. They’ll settle the fee issue.

The Texas Supreme Court, it seems to me, has clamped down progressively in the last decade on this. Rohrmoos is the standard, but who’s to say that it’s not going to be even tighter in a few years and then a different decision. Thinking about those things at the outset is important, even though you may designate yourself as an expert witness on attorney’s fees upfront. Thinking through these things before you get to trial can be super important because it can be a huge, and in some cases, even the biggest portion of the judgment, depending on how it sets up.

TALP 25 | Trial Counsel

Trial Counsel: Even if you’re a great trial lawyer, it’s nice to have somebody else to give you some support, so you’re not carrying the whole load on your shoulders.

 

We spend a good amount of time talking about working with trial lawyers at the trial court level. It’s a critical phase, but I want to visit for a bit about working with trial counsel during the appeal. In my experience, there are as many approaches to this as there are different lawyers. Some trial lawyers want to be super hands-on and want to approve every draft and want to talk about issues before the brief is written. That’s great. Others are like, “No, you’re the expert. I hired you. I need you to handle.” This is the other extreme. If the trial lawyer is going to bring a case to me, part of my job is to try to work within their work style or what they prefer. One question that sometimes comes up is who is it that’s going to keep the client updated? That’s probably something that needs to be decided upfront too. There are a lot of different approaches to that.

That has usually been my practice is to determine that at the very beginning. A lot of it sometimes depends on who brings it to you. If the trial lawyer is the one that’s calling me to bring me in on the appeal and they’ve had a long-standing relationship with the client, more often than not, if comfortable continuing to do that, I’m happy to let them keep the lead. They brought me in, but it’s my client too. It is their client. They’re the ones who’ve managed this process. I’m as available as they need me to be. I’m happy to communicate as much as they want me to communicate. At the end of the day, I don’t want to get in the way of that. That’s important to respect that.

On the other hand, if it’s the client that hires me, then I feel like they’re usually the ones that want to hear from us directly for whatever reason. There are a million different ways that it can work. It depends on the case as to how that works out. At the end of the day, the important thing for an appellate lawyer to remember is the client is your client. Your duties run to them and one place that’s fraught with peril is what you do have to communicate. When you see stuff in the record that comes up and those conversations.

I know a dozen CLE presentations at advanced appellate courses over the years, when you spot something that’s gone wrong, what do you have to do? That’s one of those things that is non-negotiable where if something is bad, you have to be honest with the client and you can’t let someone soft-pedal something or refuse to bring something up that you feel like has to be raised. I don’t know that I’ve ever had that happen where I felt like someone was trying to hide the ball, but sometimes how you present it is important too.

Generally, the best lawyers will say you need to be as forthright as you need to be. We all make mistakes. No trial is perfect. It comes back again to what we’re saying about as something harmful. Even if there was an error in admitting evidence or something. For example, some exhibit wasn’t offered or something was offered and there wasn’t an objection made, did that change the outcome of the case? The client may be pretty mad that it wasn’t handled appropriately possibly, but ultimately part of our job, you don’t want to speak too much to any potential malpractice because that’s not what you’re there for. At the same time, you can fulfill your duty to the client and still also explain that may be true. We’ve talked about standards of review. Even if it had been done appropriately, we don’t know how it would have affected the outcome. It may not have affected it at all.

Preservation is always a difficult conversation to have. The thing that I always want to tell trial lawyers and clients both is I’m not going to second guess somebody’s strategy. You’re in the heat of trial and sometimes you have to make a tough decision and looking back at the end of trial, maybe you would have handled it differently, but it is what it is. I’m not going to say that you got that wrong because there are certain times we wish you would object to something and put it in there. From a cold record perspective, it would be better. On the other hand, when the trial judge is staring at you red in the face, giving you the eye that you know that if you stand up again, you’re going to catch hell about it.

I understand why you would stay in your seat and let something fly by. That’s a decision you have to make. Do you not want to continue to be the guy that is taking the jury off when you’re interrupting every two minutes? I understand that. That stuff sometimes creates difficult conversations later with the client. “What about this? Why didn’t we do this?” The answer is because they read the room and felt like that was the right decision. I’m totally going to back you up on that and say, “I wasn’t there. It doesn’t come across in the record, but they were in the hot seat and they had to make a trade-off. That’s the way that had to go.”

The record will not show that. That’s an important point to talk to the trial lawyer about. You may not know if it’s not someone that’s in your firm and you’re not seeing them or talking to them on a regular basis. That strategic decision may not be apparent to you if you’re hired as outside appellate counsel.

A lot of stuff happens off the record. The trial lawyer knows that it happened. I had this conversation. The judge and I talked about this and it turns out the reporter wasn’t sitting there taking it down because it was a conference after the jury was out. It’s like, “We did this. I get it. I appreciate it. It’s not there. We can’t do anything with it.”

There’s communication in those issues that we’ve been visiting about. I suppose there’s the idea of discussing potential issues and strategy on appeal. I suppose in a perfect world, I would say that’s one of the reasons why appellate counsel is brought in, as we’ve talked about, is to analyze the potential issues. The ones that have the greatest chances for success on appeal, is through the appellant or the responses, if you’re the appellee. Of course, appellate strategy, that’s what we bring to the table. Being able to formulate strategy in a way that most trial lawyers cannot. Some trial lawyers are going to have definite ideas on how these things ought to go. It falls back to the same thing we were saying about communications. There’s any number of approaches to this.

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Some of my best clients are the ones that trust me completely. We’ve got that relationship where they know. We will talk through issues and they’re welcomed to ask questions. We can have discussions. At the end of the day, if I make a recommendation, they’re more than likely going to defer to my judgment. At the same time, if they’re strong enough in their convictions that if they feel strongly about something, then they’re going to challenge me. They’re going to force me to explain the reasons why that point number six should be dropped. I find in my practice that strategy issues are not a major roadblock to anything. It seems like I’m able to discuss the issues well enough with trial counsel and provide them enough opportunity to give feedback that it doesn’t tend to be a concern. What about you?

I think that’s right. Most of the time, even if I may have a different perspective than trial counsel, if you can both explain to the client where you’re coming from and let the client make the decision, that’s our job. To me, I don’t feel like I have to win or lose an argument on either one of those things to be successful. My job ultimately is to provide the client with the best information, make my recommendations, and then facilitate whatever their decision is. I don’t take it personally. If I recommend a course of action, somebody recommends a different course of action and the client chooses the other ones, that’s fine. You hired me for my perspective, my advice. As long as I’ve given that to you, you’ve listened to it and I feel like you’ve given everybody a fair shake, then we’re going to do what you want to do.

Sometimes there are completely non-legal reasons for making a decision. It may be a business judgment. It may be some down the line impact on an industry that I, sitting in my little appellate box, can’t see. I get that. I understand why you don’t want to raise this point because even though it may be the one that wins the appeal, it may lose something down the line. I’m going to defer to that and I’m totally okay with it because all I can do is bring in my experience and explain everything. When they’ve heard me out, let them make the choice that they need to make.

Ultimately, it probably makes you a better lawyer to have to explain your viewpoint. Probably you may feel good about your own work product without having this input from the client or the trial lawyer. If you’ve got this input, it probably solidifies the work product too. You’re advocating to some degree within the scope of what you’re being asked to do for what to raise and what not to raise. If you feel strongly about it as an appellate lawyer, you ought to be able to persuade the client and the trial lawyers to the reasons why.

For me, I’ve always found that for the majority of clients and the majority of trial lawyers almost exclusively, they always add something of value to whatever the final product is. Maybe it’s a nuance that reading the record I missed what was a big point at trial. Maybe it’s a little fact that ties together an argument that much more neatly, but I feel like every time I’ve sent out a draft to somebody to look at of a brief, it comes back with something that I think, “I’m glad that this is in there.” It’s the little cherry that goes on top of this argument that I’m making and it makes it that much better. I do appreciate having as many sets of eyes on it and as many different perspectives on it. It can only make a brief better.

How do you respond when a client sends you back markups on your draft?

The answer is it depends on what it is. If it’s minor changes that don’t affect the substance, then most of the time I’m going to defer to them. If you want to use some different words than I use, as long as they’re not something that I think can be offensive to the court, great. If it starts to walk down a line that’s going to create a procedural or substantive problem, I’m going to have a conversation about it and explain my perspective and go back and forth. Sometimes there are things that you get back and you say flat out, “I cannot and will not do this because this is like beyond the pale.” That’s a different discussion because I recognize you don’t like the person on the other side, the judge, the counsel, or the opposing party, whoever it is. I’m not going to sign my name to a brief that has this in there.

Let’s eliminate that discussion. Write out the email that you’re never going to send, put it all down on a piece of paper. I’ll be glad to read it, but we’re not going to file this with the court. That very rarely has ever happened, but occasionally you get something and say, “That’s way too personal. It crosses a line and we can’t.” That’s maybe 1% of the stuff I’ve ever done that happened. Usually, it’s the stuff that I think that’s great. It either makes it better or it’s neutral. If it makes the client happy, then that’s fine. If it’s something that is going to hurt it or cause a problem for some reason, then I’ll explain what that is and leave it to them to decide how they want to handle it.

That’s completely reasonable, but there are things that are non-negotiable. Are you willing to put your name and stick your reputation on something? They’re not even difficult conversations to have. This is black and white. We cannot and are not going to do this and here’s why.

To tie it back to the episode with Kevin Dubose and the standards of appellate conduct, that does make it easier sometimes as an appellate lawyer because you can put that in front of him and say, “Here’s what the appellate courts expect and require.” That’s the end of it. They’ve told us very clearly we can’t do that.

TALP 25 | Trial Counsel

Trial Counsel: You wouldn’t want to get caught flat-footed if there was something as a trial lawyer that was missed in the heat of battle or you didn’t have a depth of knowledge about.

 

The last thing I would talk about as far as working with trial counsel during the appeal is oral argument. We’re in a little bit different situation with me being a super small tiny law practice setting. If I’m handling an appeal, most of the people that send me cases are going to assume that I’m going to handle the oral argument. You’ve got a team of very qualified appellate lawyers there. I wonder if in your setting and settings of some of our appellate friends, where there’s a whole stable of very well-known people who have a lot of credibility with the appellate courts on how this is going. I don’t know how it might differ for you. I would suspect though that if you’re getting hired by an outside firm, it’s probably similar to my experience, which is they’re essentially turning over the case to you to handle. That includes the oral argument. I suspect that what you might be up against is if Keltner’s name is on the brief, is he going to get to do it? Are you going to do it?

David Keltner is probably the best because I have to. He is the best advocate I’ve seen. People hire him because they want them to argue the case because he is the best at it. I totally understand that. That has never bothered me because they should. He’s got more experience doing it than about anyone I know, but unless they specifically are hiring him to do the argument, sometimes it’s a discussion with the client of, “Why don’t you have Jody do it? It will be far less expensive and he’s going to do a great job.” At least that’s what I’ve heard him say. I hope that he says that in private when I’m not on the phone call with him, but it depends on the case, honestly. That’s right in a lot of cases. They hire him specifically because of who he is and what he brings to the table with his abilities.

A lot of times it is a discussion of, “What do you want?” A lot of times, even before that the discussion is, do we want to have an oral argument? I have that discussion in a lot of cases, both as the appellant and the appellee. In the age of COVID, in particular, since some courts aren’t having it, but that’s always a conversation to have with clients, and trial counsel too, is do we need an oral argument? Is this the case that warrants it? A lot of times if we have the appellant, yes, but there are reasons in some cases where you don’t need it. I feel like I have that conversation a lot too in cases. At the end of the day, of all the judges I’ve talked to, 99% of them will say, “It doesn’t change my mind, but it may change the way that I come to a result.” That’s an important conversation to have because an oral argument is an expensive proposition.

You’ve got to educate clients about that. “If you ask for an estimate, I can give you maybe a range of things that are going to apply it to the opening brief as the appellant and maybe the reply brief. The oral argument may or may not happen if we ask for it and that’s going to involve yet another line item here in the budget.” Good appellate lawyers will closely examine whether there is a need for oral argument in the case. If I thought that argument wouldn’t add anything to what I’m saying in the brief, I haven’t hesitated to say, “I don’t think we should ask for oral argument.” I can’t think of a time that my trial counsel has tried to overrule me on that, particularly if they’re the ones paying.

If you do it the right way, you can get oral argument pretty much anytime you want it. You’re right. Discretion is the better part of valor. Knowing when not to ask for, it goes a long way with the court. I’ve talked to a lot of judges and asked this question and been at CLEs where it’s been asked. Most of the judges say, “No, it doesn’t influence my view of a case one way or the other,” whether or not they ask for oral argument. It doesn’t mean that they think their case is weak. It may be that they have a client who says, “I don’t want to pay for this. The brief is good and we’re going to go with it.” I don’t hold that against them because we’re busy too. If you don’t want to take up our time with that, that’s fine. It’s less for us to have to prepare for.

We’ve gone exceptionally long. This is an interesting discussion. You and I could sit around and talk about this stuff for the rest of the day. Hopefully, we would say something worth other people reading. We’ve managed to stick to what we thought we would talk about. The only other thing I would say is I don’t think we ever on the show have plugged ourselves. This is probably a good time to mention that if you’re a trial lawyer reading this, we will speak and advocate broadly for appellate lawyers as a practice group. Certainly, if there’s something that you feel like you need help with and you don’t know anyone to call, you should call one of us.

We are happy to talk through an issue with you, even if it doesn’t involve a representation. As you can tell, Todd and I are happy to nerd out and talk about appellate topics all day long. The other thing that sometimes gets lost in the shuffle with appellate lawyers is we both appreciate and value what litigators and trial lawyers do. It is a different skill set than what either of us has and brings to the table. Sometimes there’s some butting of heads between appellate and trial lawyers over a lot of different things. We’re talking about all the ways we can help, which is not to say that there aren’t a lot of incredibly talented trial lawyers out there who can do so many great things, especially in Texas. All we’re saying is we can help you with that and complement the work that you’re already doing in a way that benefits both you and ultimately the client.

In the long run, despite the concern about the additional expense and so forth, the result generally is a better outcome for the client. You can short circuit a lot of things, you can streamline the trials we were saying, you might even get a better result because of someone having the procedural and substantive expertise that people like us bring to the table. We’ll advocate on the whole for the appellate bars being a group that people should definitely consider contacting. If nothing else, if you’re a trial lawyer and you’re handling your own appeals, try to get somebody else’s eyes on the brief.

Even if it’s that, as a friendly gesture, it makes such a difference. Anytime I write a brief, I want to make sure at least one other person reads it in detail and gives me edits. Usually, I’d like to ask 2 or 3 people because with every set of eyes, you catch something that you’re not going to catch. By the time you’ve written a brief, read it as many times, proof-read it, gone back, double-check it, check the record sites, check the legal sites, and all that, you will have read it too many times to catch everything.

You skipped right over your typos.

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You don’t notice them until it’s posted on the court’s website. Somehow it’s like they highlight them. I don’t know how they find it automatically.

I notice them when I’m getting ready for oral argument.

That’s what I mean. You print out a copy of it as you’re getting ready to do something and you’re like, “I wish I hadn’t.”

You feel like an idiot.

You find those words that spellcheck won’t pick up, even though it’s the wrong word. That’s always like a stab in the heart.

This has been good. It’s good to talk with you about all this stuff, Jody. We can have a lot more conversations like this that people will benefit from, even if we don’t have a guest on the show with us.

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

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