APPELLATE PRACTICE2019-04-05T14:25:12-05:00

Appellate Practice

“Never give up!  Never surrender!”

          ̶  Cmndr. Peter Taggart, Galaxy Quest

Approximately half of all litigants who do not settle their dispute and take it all the way to trial lose.  But the judicial process often does not end there.  A losing party has the opportunity to appeal many adverse decisions.  Most final judgments in both state and federal court can be appealed to the appropriate intermediate appellate court.  Certain decisions made by the trial judge can even be appealed before a final judgment is entered.  When a trial judge or public official commits a clear abuse of discretion, relief may be available by means of an original proceeding seeking a writ of mandamus.  Even after an intermediate appellate court has made a decision, the Supreme Court of Texas or the United States Supreme Court may, in their discretion, review that opinion.  Bennett, Weston, LaJone & Turner, P.C.’s appellate lawyers can evaluate your case and help you through the appellate process.

Types of Appellate Matters

There are essentially five categories of appellate matters:  1) direct appeals from final judgments, 2) appeals from interlocutory rulings, 3) restricted appeals usually from default judgments, 4) original proceedings, including petitions for a writ of mandamus, and 5) discretionary appeals to the supreme court.  Each of these five categories has its own rules, procedures, and governing standards.  Successful appellate advocacy requires a clear understanding of the standard and scope of review applicable in each situation.  Thorough legal research is necessary to ensure a comprehensive understanding of the legal issues raised in each particular matter.  Our appellate lawyers have handled appeals in ten of the fourteen intermediate courts of appeal in Texas, before the United States Court of Appeals for the Fifth Circuit, and to the Supreme Court of Texas.

Direct Appeals from Final Judgments

The most common type of appeal is a direct appeal from a final judgment.  The judgment might be the result of a jury trial, a non-jury trial, or a motion for summary judgment.  The considerations which an appellate lawyer faces can be different from those faced in litigation.  Trial counsel must balance the need to object or complain in order to preserve error for appellate review against the negative perception that such objections or complaints may have in persuading the jury or judge to rule in your favor.  Unless properly preserved, it is judicially proper and expedient for the appellate court to consider such complaints to be waived.  Usually, there is a narrow window of opportunity to file certain types of post-judgment motions before actually filing a notice of appeal which can help to preserve a party’s complaints about errors that may have led to the entry of the judgment.  Once that window of opportunity closes, there will not be another opportunity for the lawyer to present most such complaints to the trial judge.  Because preservation of error is a key component of a successful appeal, it is usually preferable to retain appellate counsel as soon as possible following a trial on the merits or summary judgment ruling.

A party’s chance of success on appeal depends upon the particular facts and legal issues presented in each particular case.  Statistically, however, 60-75% of cases appealed from a final judgment are affirmed, meaning that trial court’s judgment remains undisturbed.  Winning an appeal may result in the judgment being modified or the case being remanded for a new trial or further proceedings in the trial court.  In some cases, an appellant may be so successful that the result is an elusive “reverse and render” decision in which losing party originally becomes the winner on appeal.

Ordinarily, the appellate process lasts 12-18 months in the intermediate court of appeals.  Much of the legal work, however, is performed in the first few months as the appellate lawyers gather and analyze the record of the case from the trial court, research the legal issues involved, and prepare the appellate briefs.  An appeal does not automatically stay the enforcement of a judgment, so additional work may be required to supersede or stay the judgment while the appeal is pending.  Although appellate lawyers often work on a hourly basis, many appeals are conducive to being handled for a reasonable flat fee.  Because most of the legal work is performed in the first few months, a party involved in an appeal should anticipate paying much of the legal expense of an appeal upfront, or very early in the process.

Interlocutory Appeals

Sometimes, a party does not need to wait until the end of a case to appeal a trial court’s decision.  Certain types of rulings made during the progress of a case can be appealed immediately.  Typically, these are rulings that deny a request for relief that would have resulted in a favorable judgment for one of the parties if granted.  Certain rulings regarding class actions, receivers, trustees, jurisdictional issues, and injunctions can also be appealed even before a final judgment.  In some cases, the trial court may grant permission to appeal an interlocutory order that involves a controlling question of law on which there is a substantial ground for difference of opinion.

Interlocutory appeals are handled on an accelerated basis.  While this does substantially reduce the time for decision, it also compresses the time for the appellate lawyer to perform the necessary legal work.  In many cases, activity in the trial court continues simultaneously with the preparation and presentation of the appeal.  Parties wishing to appeal an interlocutory order should be prepared to pay a premium to the appellate lawyer while also funding the ongoing litigation in the trial court.

Restricted Appeals

A restricted appeal is a special type of appellate process available only to a party who did not participate—either in person or through counsel—in the proceedings which resulted in a judgment.  In such cases, the deadline to appeal is extended to six months after the judgment or order is signed, giving a party much longer to file than in other types of appeals.  The record from the trial court is almost always shorter and will require much less time for the appellate lawyer to review.  In addition, the legal grounds for such an appeal are more narrow, usually turning on whether party’s failure to participate was the result of a defect in service or notice appearing on the face of the record.  In some cases, the appealing party may challenge the evidence offered to support the judgment rendered.  As such, a restricted appeal is typically less expensive.  The legal arguments in such cases can become very technical, so it is important to consult an appellate lawyer with experience handling restricted appeals like those at Bennett, Weston, LaJone & Turner.

Original Proceedings (Writs of Mandamus)

An original appellate proceeding seeks extraordinary relief in particular types of cases.  The most common relief requested is a writ of mandamus ordering a trial judge to take specific action as directed by the appellate court.  Usually, such relief is only available when the trial judge has committed a clear abuse of discretion for which there is no other adequate remedy at law.  Other original proceedings may request a writ of habeas corpus, prohibition, or injunction.

Writs of mandamus often involve discovery orders made by a trial court.  A classic example of such a case would be a trial judge ordering a party to turn over privileged information.  In such a case, the appellate court may intervene to preserve the protected status of the privileged information.  The appellate court may also intervene when a trial judge orders overly broad discovery which will require substantial expense or inconvenience, or refuses to allow appropriate discovery necessary to the presentation of a party’s case.  Other cases may involve serious discovery sanctions, the disqualification of counsel, and issues involving the appropriate forum to resolve a dispute.  A writ of mandamus may also involve the granting of a new trial or the amount of a supersedeas bond.

There is a reason why the actual rules of appellate procedure refer to original proceedings as a request for extraordinary relief.  They are not intended to supplant or expedite the usual appellate process or to allow the appellate court to micromanage a trial court’s decisions.  Less than 10% of original proceedings result in an appellate decision granting extraordinary relief.  Some trial judges take offense when accused of committing a clear abuse of discretion, particularly if an original proceeding is filed without a very good reason.  An appellate lawyer with experience in original proceedings can help you decide whether to seek extraordinary relief in your particular situation.

Discretionary Appeals to the Supreme Court

Most appeals to the Supreme Court of Texas and to the United States Supreme Court are discretionary.  Even if you are right, and the trial judge and appellate panel are wrong, our supreme courts are not required to even consider the merits of your argument in most cases.  Nine justices simply do not have enough time to consider the merits of every case brought to them by losing litigants.  Our highest courts are more concerned with the workings of our justice system as a whole rather than the individual facts of your particular case.  You need an appellate lawyer who can persuasively argue that the result of your case will have far-reaching, adverse jurisprudential effects on the legal system that go far beyond your particular dispute.

In this type of appeal, an initial appellate brief is submitted by the party seeking relief explaining why your particular case is so important that the highest court should consider it.  It is helpful, but not dispositive, if your case involves a legal question on which there is considerable disagreement or a new, rapidly developing fact patterns which are likely to recur.  It is helpful if your case is interesting to the current justices on the court.  Both supreme courts operate on what is called a “conveyor belt” system.  Unless several justices take an interest in your case within a reasonable period of time, your case will—figuratively speaking—drop off the end, resulting in the denial of your request that the court even consider your case.  Your appellate lawyer will need to learn what legal issues the current justices of the court are interested in by reviewing their recent opinions in other cases, public presentations, and other sources.  If the other party is seeking relief from the supreme court, your appellate lawyer should try to show how boring, routine, and ordinary your case is, if possible, or how your particular facts are unique, unusual, and unlikely to ever happen again.

Ultimately, there are relatively few cases that are legitimately of such importance to our jurisprudence that spark the interest of our supreme court justices.  Most appeals to the highest court are denied without ever being considered on the merits.  On the other hand, the nature of the discretionary review process is such that a supreme court rarely decides to consider a case on the merits when it agrees with the appellate court.  The majority of cases heard on the merits at this level result in a decision contrary to the decision of the appellate court.  The appellate lawyers at Bennett, Weston, LaJone & Turner understand this dynamic and can help you present your case in the manner most favorable to achieve the outcome you desire.

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