The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Just a heads up, today, that if you take a look at "This Week in Texas Lawyer," you will see a familiar blogger, complete with bow tie.

The Texas Lawyer published the first in a series of articles I will be doing on nuts and bolts in appellate practice for Texas practitioners.  The first, "Pick Me!" is about how to get the attention of the Supreme Court of Texas when you've been done wrong by the Court of Appeals.

There may be some things you had not thought of, but the summary of the practice tips comes down to emphasizing:

• which court of appeals the high court should review;

• how much is at stake for these parties or others;

• the potential for the case to impact statewide matters, such as those governed by the same contractual language or the same statute; and

• the ease and effectiveness of the court's ability to grant complete relief by rendering judgment.

It's a fun read (patting myself on the back) so why not read the whole article.

And sure, it's important to be able to look at your court of appeals opinion and tell whether or not you've got a Supreme Court case on your hands. But it may be even more important to be able to see Supreme Court issues right from the start in order to pursue and preserve them for argument five years from now in a court that may change between now and then.

As I've said before, be sure and call your friendly neighborhood appellate law nerd early and often. The case you save may be your own.

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Blogging, at its best, is a conversation. The blogger has some news or a take on something or an idea or something to say and throws it out there into the blogosphere. Other folks may comment on it, or repost the thought in their own forum and add their take. And so on and so on.

That's the part I enjoy: the back and forth, the contributions from others, and those times when something I write is useful or entertaining to someone else.

So it was gratifying last week to see where Hearsay, the blog of the Westminster Law Library at the Sturm College of Law at the University of Denver mentioned The Appellate Record from among Carl Sagan's "billions and billions" of blogs in the universe, among which there are a goodly number of law blogs--or blawgs.

Hearsay cited this blog as an example of a legal blog that "strikes the delicate balance between serious . . .  and whimsical." Nice. Because that's what I've been trying to do--give useful information, but mix it up in such a way that the blog is a fun place to go and hang out. And it was especially nice to get props from the law librarians. The law library is the natural habitat of an appellate lawyer, so we have a special, nerdy kinship with the secret society of law librarians. 

The kind mention happened in the context of a discussion of how to get started blogging: 

[A]s noted by Nicole Mundt . . . “there are very few actual “rules” to legal blogging, [but] there are quite a few considerations.” One way to try and figure out what works is to read through some of the many articles and book sections now dealing specifically with this topic. Another, more interactive way, is to see what other lawyers are doing, and incorporate the best stylistic aspects of other blogs into your own.

I agree. Blogging is a conversation, not a monologue. Becoming part of this virtual conversation is just like joining any conversation "in real life." Walk in, hang out for awhile, see what everyone is talking about, and when you're ready, find your voice:

• Comment on what you read.
• E-mail posts you like to colleagues.
• Start your own blog if that's your thing.

Whichever way works best for you, join the conversation.

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The statute creating removal jurisdiction allows a "Defendant" to remove a claim to federal court. But what about an intervenor who later has claims asserted against it? Isn't that kind of like being a defendant?

Maybe, but that's not good enough. The Fifth Circuit released In re Crystal Power Company, Ltd. on Monday, granting mandamus relief to address the district court's refusal to grant a motion to remand such a case. Judge Higginbotham  wrote the court's opinion.

The court found the intervenor's status indistinguishable from that of a state court plaintiff who later tries to remove federal counterclaims -- a procedural posture that the Supreme Court refused to allow 70 years ago in Shamrock Oil & Gas Corp. v. Sheets. Judge Higginbotham wrote:

Although this case involves a cross-claim rather than a counter-claim, the answer is the same. The controlling legal principle from Shamrock is that “the plaintiff, having submitted himself to the jurisdiction of the state court, [is] not entitled to avail himself of a right of removal conferred only on a defendant who has not submitted himself to the jurisdiction.” If the [intervenor] wished for a federal forum, it was required to pursue a separate action in federal court. Having chosen to intervene as a plaintiff in state court, the firm forfeited its right to removal.

Congress meant what it said and said what it meant. "Defendant" means Defendant, one hundred percent.

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We now return you to our regularly scheduled law blog.

Wouldn't you know the week that work piles on, the Fifth Circuit does too. The court released lots of published opinions in the last week. In particular, if you're an administrative law junkie, or a fan of trying to sue the federal government, there will be several cases that float your boat.

If, however, you are an average Joe like me, never fear. We have sorted the ones that might interest the civil appellate practitioner.

• If you ever drive into the side of a non-moving train that has been parked on the crossing too long, Elam v. Kansas City Southern (pdf) sets out which causes of action will survive preemption under the Interstate Commerce Commission Termination Act. (Negligence per se was, general negligence was not). Judge Benavides wrote the court's opinion.
• Del Ray Battery Co. v. Douglas Battery Co. (pdf) involves a federal declaratory judgment action seeking declaratory relief, attorneys fees and experts fees that had been cut off when a state action had been nonsuited.  It reads like a fed courts final exam question involving mootness (it was not), the Rooker-Fedlman doctrine (no bar here), federal question jurisdiction (which was found), preemption of the Texas Solid Waste Disposal Act (it was not preempted). Judge King wrote the court's opinion.
• Finally, Ford, Bacon & Davis LLC v. Travelers Ins. Co. In this case the "LLC" was all important because LLC was trying to piggy back off of Ford, Bacon & Davis, Inc.'s insurance coverage, arguing that the coverage transferred to LLC "as a matter of law" when it bought some of Inc.'s assets. Judge Prado wrote the court's opinion, rejecting the argument because the "product line" theory of successor liability on which the argument depends is not viable under Texas law. 

And in the interest of full disclosure, one of the reasons Ford, Bacon & Davis is so tasty is because it was my case. If you have occasion to deal with successor liability and insurance coverage issues, the opinion will be of use to you.

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The spirit of protest is abroad in the land!

Tyranny quakes in the face of the Jasmine Revolution, the Facebook Revolution, and the Scrabble Revolution!

What? Am I the only one who's familiar with the Scrabble Revolution? Am I a revolution of one?

Am I the only word nerd prepared to cast my Scrabble tiles into Boston Harbor in protest of the tax on letters?

OK, I'll concede that my Scrabble Revolution pales in significance to the real revolutions around us. But the letter tax still makes my head explode. And this is my blog, so in this little corner of the universe, it's all about me.

After the break, find out why I am convinced that there must be a tax on letters to make the courts write the way that they do.

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I don't know that there are any short cuts to doing a good job.

--Sandra Day O'Connor

If anyone ought to know the value of time, you would think it would be lawyers.  Many of us send out pieces of paper at the end of the month asking for money based upon the amount of time spent on clients' matters.

And yet to do good work--really good legal work--it often takes more time than we feel like we have and more time than clients want to pay for.

I'm not just talking about the time and care involved in proofing a brief to get it letter perfect, although that that is certainly part of it. My group of law nerd neat freaks reserves about 5 to 7 days before filing just for client comments, proofing, bluebooking, and more proofing. And the brief is usually out the door by early afternoon on the day of filing.

Yeah, we're those guys--the ones who never drafted a term paper the night before it was due or crammed for a test.  Sorry.

When law is done right, time is used in all sorts of other ways, some of which don't look like "working" and some of which do not even appear on the time sheet. For example:

• the time it takes to really sit still and think through a problem
• the time it takes to think about how your rule of law fits with the law as a whole
• the time it takes to put yourself on the other side of the bench (or even the other side of the case) and make your position seem reasonable from that point of view
• and  time not thinking about the case so that you're fresh enough to have that stroke of insight that can make all the difference.

Whether or not this "time" ends up on the time sheet, it is valuable time.  Yet we so often clutter our thought space with trivial busywork or Google ourselves to distraction--to which I frankly plead guilty.

Sure, you could practice law without investing this kind of time. You can look only at the short term advantage to be gained if you tie your opponent's shoe laces together or hornswaggle a judge into accepting a position you know that you you'll never hold in the long run.

But these are all short cuts, and as Justice O'Connor said, there are no shortcuts to doing a good job.  It takes time.

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