Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

At some level, every blog is built on shameless self-promotion.  To that end, I'm happy to point out some attention generated by my recent post entitled Newsflash:  Appellate Judges Read Blogs:

• The piece was picked up by the online version of the Wall Street Journal and mentioned over at the Sophistic Miltonian Serbonian Blog.
  
  
• The California Blog of Appeal's Greg May added to the discussion and has since posted a follow-up survey to get a feel for his readers' demographics.
  
  
• LexBlog's Kevin O'Keefe chimed in on Greg's survey and wrote his own piece, in which he predicted that "lawyers with well written blogs on niche litigation subjects are going to be called in as co-counsel on an appeal or brief" and further commented that "[t]he value of having a lawyer on your side whose material is regularly read by the court you're before is priceless."

Blogging has definitely helped me obtain broader exposure faster than any other medium could provide.  Here's hoping that Kevin's prediction is accurate over the long haul.

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For some Friday afternoon fun, watch this video, courtesy of the Sophistic Miltonian Serbonian Blog:

If you don't know, Tom Goldstein was a small-firm lawyer before he joined Akin Gump.

(Yes, this was my first attempt at imbedding video on this blog.)

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The Texas Supreme Court decided six cases and issued one substituted opinion with this week's orders.  Briefly, the new decisions are:

• First American Title Insurance Co. v. Combs (No. 05-0541), affirming the Comptroller's interpretation of a retaliatory tax statute affecting foreign insurers.
  
  
• In re McAllen Medical Center (No. 05-0892) (orig. proceeding), holding that appellate courts may review the adequacy of expert reports required by the Medical Liability Act when the statute's purposes would otherwise be defeated.  The Court conditionally granted the writ and ordered the trial court to dismiss the plaintiffs' claims against the hospital.
  
  
• Canyon Regional Water Authority v. Guadalupe-Blanco River Authority (No. 06-0873), deciding a state water authority's easement rights involving a lake.
  
  
• In re Citigroup Global Markets, Inc. (No. 06-0886) (orig. proceeding) (per curiam), concluding that removing a case to federal court before filing an answer did not waive the defendants' right to arbitration.  Compare Perry Homes v. Cull (No. 05-0882), previously discussed here.
  
  
• Higgins v. Randall County Sheriff's Office (No. 06- 0917), holding that an uncontested affidavit of indigence entitled the appellant to pursue his appeal without advance payment of costs.
  
  
• City of Dallas v. Reed (No. 07-0469) (per curiam), determining that a two-inch variance between traffic lanes was neither a special defect nor a premises defect for purposes of the Tort Claims Act.

I expect we'll see some lively discussion of McAllen Medical Center, Citigroup, and Reed in the coming days.

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While attending a bar function today, a local appellate justice I have met a few times before recognized me, introduced me to his companions as the author of an appellate blog, and confessed (?) to being one of my regular readers.  I have had similar conversations with other members of the appellate bench in recent months.

Appellate judges are often perceived as ivory-tower idealists.  They don't really read blogs, do they?  I mean, anybody can put a blog up on the internet, right?  Minimal tech skill—but no legal knowledge—is required.

Anybody can.  But this justice reads mine.

That alone makes it worthwhile.

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One of my goals in creating this blog was to have it serve as a sort of "home page" for lawyers involved in Texas appeals by providing links to resources those folks are likely to need at some point in the appellate process.  For example, say you're away from the office and need to double-check what TRAP 9.5 says about certificates of service.  Visit http://texasappellatelawblog.com, scroll down the sidebar to "Useful Links," and click on "Texas Rules of Appellate Procedure."  Presto!  No Westlaw or Lexis password required.

For the benefit of those with matters before the Fifth Circuit, I have included a link to that court's web site and a version of the FRAPs that sets out the court's local rules and internal operating procedures.  Another useful resource is available that should be consulted early and often:   the Practitioner’s Guide to the U.S. Court of Appeals for the Fifth Circuit.

Thanks to the (new) legal writer.

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Though somewhat afield from this blog's primary focus, the topics of electronic discovery and computer forensics should concern anyone practicing law in this day and age.  I am therefore pleased to announce that nationally recognized expert Craig Ball—a board-certified trial lawyer in his own right—will speak to the Austin Bar Association's Solo & Small Firm Section at noon on Thursday, May 22, 2008 at the Austin Bar office.  (In case you're wondering, as the Section's Program Co-Chair, I'm the guy responsible for lining up speakers.)

The event is free for Section members, and others may attend for a nominal charge.  If you'd like to attend and reserve a catered lunch, please contact Bill Biggs at wbiggs@sbcglobal.net.

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The Texas Supreme Court released no opinions with this week's orders.

Of interest, check out these posts from the Sophistic Miltonian Serbonian Blog and the Supreme Court of Texas Blog about the recent Texas Watch report criticizing the Court's alleged overreliance on per curiam opinions.

I would be interested to know whether the report cites any specific cases as examples of ditching accountability by hiding behind per curiams.  Without that, it's a little tough to appreciate what the hubbub is about, since PCs usually don't tread any new ground.

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The following is a guest post from Roger Hughes of Adams & Graham, LLP:

Lawyers, and perhaps appellate attorneys, now face a new problem if their briefs or pleadings stretch facts or are flat wrong about them.  That problem is indictment and jail.  This week, the Texas Court of Criminal Appeal decided round two of Vasilas v. State ( PD-1473-06) (May 7, 2008).  The Court reversed the trial court’s ruling that quashed the indictment against an attorney who allegedly made a false statement in a civil pleading.

Vasilas was an attorney for a criminal defendant who beat the criminal charges; Vasilas then filed an expunction suit.  The petition he prepared contained factual error.  Unamused, the DA indicted Vasilas under Texas Penal Code § 37.10(a), which prohibits making false entries in a “government record.”  This is a felony if there is an intent to defraud.  The trial judge quashed the indictment.  Still unamused, the DA appealed.

In the first round, the Court held that a petition in a civil case was a “government record” for the purpose of Section 37.10.  Vasilas v. State, 187 S.W.3d 486 (Tex. Crim. App. 2006).  It remanded to the Dallas Court of Appeals, which determined that the civil rule about frivolous pleadings, TRCP 13, did not supplant the Penal Code and remanded for trial.  Vasilas returned to Court of Criminal Appeals, joined by amici TTLA and TADC.

In Vasilas II, the Court decided that the doctrine of in pari materia did not apply.  Because TRCP 13 was a court rule, not a statute, it doesn't trump the Penal Code for false statements in civil case pleadings.  The Legislature did not write TRCP 13, so there was no reason to use it construe or control Section 37.10.

The upshot is that, no matter what the judge in a civil case does, the DA can still indict and prosecute for arguably false statements in a brief or pleading.  It's a bit scary to think that you can defeat a motion for sanctions over a statement in your brief, but your opponent can still get you indicted.

Think about going to jail for something in your factual statement the next time you write a a brief.  Your ultimate audience may be the DA and a criminal jury.

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As mentioned in my last post, I've been tied up getting ready for an oral argument I had today before the Third Court of Appeals here in Austin.  The case is not the kind you would usually get that excited about, but we have a couple of good legal issues, and it got a fair amount of media attention when it was tried.  (I wasn't involved at that stage.)  More media coverage could be coming, depending on what happens with the appeal.

As I prepared, I was reminded of the things that make oral argument great.  Today, a big part of it was getting my client her day in court.  Then there is the thrill of back-and-forth dialogue with the appellate justices on narrow legal issues that wouldn't interest most people.

But one of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements.  As the appellant, if you can't persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you're probably going to lose.  As the appellee, the key is to identify and emphasize the reasons why the court should leave well enough alone.  Whichever side I'm on, it's a process I always enjoy.

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