In re United Services Automobile Ass'n: How To Sleep Like A Baby
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If you are an appellate lawyer in a law firm, then you're probably treated like the "Shell Answer Man."
(Gentle Reader, if you were not born until the late '70s, this is a pop culture reference to a Shell Oil Company advertising campaign from the time before "Reality Television." Bear with me.)
You know what I mean. People avoid that big room with the shelves and shelves of books with a quick trip to the office of the appellate lawyer. The questions can be practical"
- Can I remove a claim involving _______?
- Do you know of a case on ______?
- How do I preserve error when ____?
They can also be terrifying.
How many times, dear colleagues, has the clever lawyer (often with dollar signs in the eyes) come to your office and asked:
Can I [Fill In The Blank With Random, Incredibly High Risk Gambit With infinitesimally Low Probability Of Potential Reward That Will Likely End In Disaster]??
I often answer this question with a question:
Why would you want to?
The corollary to this question, often by the same lawyer is:
Do I have to [Fill In The Blank With Low Risk, Widely-Accepted Manner Of Doing Things That Would Avoid Vagaries In The Law That Said Lawyer Wants To Exploit For Potential Gain]?
This question is also often answered with a question:
Why wouldn't you do it that way?
After the jump, a primer on the antidote to such temptations, what my mentor, Lori Gallagher, called the "sleep at night" school of practicing law.
In re United Services Automobile Ass'n is a case where the Supreme Court of Texas found that the Plaintiff's counsel made the strategic decision to file his claim in a court that did not have subject matter jurisdiction. Whether the plaintiff liked the judge in the County Court at Law or the rapidity of the docket or whatever other perceived advantage, the "strategic decision" was fatal.
The amount in controversy exceeded the trial court's jurisdiction. It always had. The failure to plead that the claim was "within the jurisdictional limitations of this Court" could not hide it. And when the jury awarded a plaintiff's victory, the plaintiff nevertheless lost the judgment.
When the plaintiff tried again, in a court where he could easily have filed the first time around, it was too late. Limitations had run, and it could not be tolled during the first action. According to the Supreme Court, the first filing was no mistake. The lawyer was not uninformed about the County Court at Law's jurisdictional limitations. The choice was "strategic."
And here is the irony. Texas trial court jurisdiction is complex on a Byzantine scale. Chief Justice Jefferson's opinion fully recognizes this. But the Court found that this counsel, like so many other lawyers facing Byzantine choices, tried to exploit the potential confusion rather than avoid it.
We almost always have the choice to avoid the confusion. There, the lawyer could always choose to file in a court of general jurisdiction. Indeed, USAA filed its jurisdictional challenge in the first case well before limitations had expired. Why resist on a potentially losing argument and risk a winning case? One can recognize the risk involved in Byzantium and try to avoid it rather than exploit it. Not flashy, but not risky either.
- No matter how complex the question, you can almost always play the middle of the fairway or the high percentage shot.
- You can bunt or hit a single and move the runners over.
- You can take the choice that allows you to sleep at night.
Or you can always swing for the long ball. But long ball hitters strike out a lot.
You can be strategic. But strategerie kills.
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