San Antonio Download, Pt. 2 – appellate ethics & recent appointee observations

Practice area:


Continuing my summary of the last AAAL meeting, as appellate nerds know, Texas is the one appellate jurisdiction that has a separate and additional set of ethical rules applicable to appellate bar practice.  The folks who instigated this development gave an interesting talk on how this happened.

First, here’s a link to those Texas’ appellate rules of ethics, promulgated by the Texas Supreme Court and Texas Court of Criminal Appeals (the latter being the highest Court in Texas for criminal appeals) in 1999.  (Standards for Appellate Conduct, The Supreme Court of Texas)

As you peruse, you’ll note there is nothing radical or unsurprising.  To sum up:  “Play nice.”  The rule about manipulating margins is now obsolete, because those courts, like most now, use a word count.

Note that these rules apply to the appellate judges, too, not just the bar.

Basically, the reason the rules came about was because some of those trial lawyers in Texas at that time were a rootin’ tootin’ bunch, and the appellate bar, which is a well-developed, certified specialty there, didn’t want clients coming to them after that lively experience and think the wild west still applied at the appellate level.  So a major reason for the rules is so the appellate lawyer, when, for example, is asked by a client why s/he has agreed to the other side’s motion for an extension of time, can point to these rules and say it’s an ethical obligation under these circumstances.   The rules can get attached to the opening engagement letter with the client – note they say you are supposed to apprise the client of them – and the appellate lawyer can point to them in subsequent conversation.

As you peruse, you will note that one requirement is that you aren’t supposed to foster unreasonable expectations for your client.  One of the presenters has said he has lost more than one beauty contest by providing realistic assessments of chances and costs, while someone else tells another story.

Finally, while the drafters did not intend these rules to have this purpose, the Court has cited the rules 22 times.

Recent appointees

In the next session, the two most recent Fifth Circuit appointees chatted about their experiences on the bench.  Here are a few nuggets:

  • Even though it had been a while, these judges stated they were influenced in their style and approaches by the judges for which they clerked.
  • Interestingly, the Fifth Circuit uses bench memos, and both newbies said that they don’t like them.
  • They ponder how to draft their decisions in the narrowest way.
  • At the Fifth Circuit, the judges know who is on their panel a year ahead of time, and this can be important to them.  As I’ve mentioned in previous blogs, a consistent message from judges is that an appellate decision is a Group Think, with give and take and internal advocacy.
  • Judge Higginson starts by reading the reply brief, then the trial court decision.  If the reply is too granular then he starts with the decision.  He reads the bench memo last.  He also likes to look at any recent law reviews on the matter before him, if any.  Sometimes, for amusement, he reads just the footnotes in a brief, because that’s typically where the weaknesses are buried.
  • Judge Costa reads the briefs in order and he also reads the bench memo last.
  • The Fifth Circuit has a whiz bang program so that when the judges get their briefs (typically 6 weeks in advance), they are electronic and all the cites, record and cases, are hyperlinked.  So this influences how the briefs are read.  The brief is put on one screen, and then they bounce back and forth to the hyperlinks.  This is the future for everyone, folks (even if the distant future for some courts), so keep this in mind when drafting.  They will really stop reading the brief to look at the hyperlink if you put in ellipses in a quote (to see what’s missing) or you don’t put in a pin cite (to see if the decision really stands for the proposition you are asserting.
  • They noted that because the junior on a panel talks first in the chamber discussion after argument, that judge might have more influence than you would otherwise think – s/he can set the field on which the remaining discussion plays out.
  • On the argument front, they said you should rehearse spontaneity (an excellent point, and I think we know exactly what they mean).  When you see the yellow and it’s been a hot bench, get your points out then if you couldn’t before.  Remember the importance of the last word.

Finally, Judge Higginson noted that they do not receive a lot of feedback.  So he likes blogs by non-parties discussing their decisions

We do our best.