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

Hooray! Texas has e-filing!

In the Supreme Court.

In many of the intermediate appellate courts.

Even in many of the big city trial courts!

Nirvana has been reached. That's good right?

No, that's bad.

How?

Texas also has the most presumptively open regime of court records in the country. With a click of the mouse any Tom, Dick or Hacker can access the dirty laundry or private information that makes its way into the court records--either because it needs to be there to adjudicate the dispute or simply because of carelessness.

Uh, oh. That's bad, right?

No. That's good. We want our courts to be open. Star Chambers are not the hallmarks of free societies.

So it's complicated, then?

Yeah, you could say that. Here's the illustration I borrowed for a recent paper on the topic:

Before you become warm and fuzzy with abstract notions of democratic theory, I challenge you to get really practical:

• Write down five entities that you owe money to, and write down how much you owe them. Don’t forget your mobile phone carrier and your electricity provider.
• While you are at it, write down your full name, every name you have been known under, and your Social Security number.
• How about your monthly mortgage payments, your cable bill, your insurance premiums?
• Now the names and ages of your minor children.
• Now publish all the information on the internet.

No? Why not? This information ought not be public? But that’s what it feels like to file for bankruptcy. 

This is the problem. Are there any solutions? Should the rules be changed? What should lawyers be doing to protect their clients and themselves?

Well, that's the topic of my yearly rant at the 21st Annual Conference on State and Federal Appeals to be held June 2nd and 3rd at the Four Seasons Hotel in Austin. Until then, I'll be sharing little tidbits of the topic and I hope to see some of the blog lurkers at the conference.

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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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Just a quick note today to let you know that The Appellate Record may be coming to a venue near you.

Tonight, I'll be live and in concert with Judge Brister at the Texas Association of Civil Trial and Appellate Specialists--a wild group to be sure.  At least I hope we'll be "in concert," because this is the first time we've given this presentation together.

We will be speaking on "Painstaking Excellence: More Ethics Than You Require," which is guaranteed to be the most painless ethics CLE credit you will ever receive. The event will be held at the Four Seasons here in Houston.  Cocktails are at 6:30, dinner at 7:00.

Upcoming events include:

• Confidentiality and the Appellate Process at the UTCLE Conference on State and Federal Appeals (June 2-3, 2011)
• Appellate Typography (with Robert Gilbreath) at the Dallas Bar Association Appellate Section Lunch (June 16, 2011)

So if that sounds like your particular brand of vodka, attend and introduce yourself. I'll be the one in the bow tie.

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On Tuesday this week, the Supreme Court of Texas issued a special set of orders.

Orders usually come out on Friday, but the Court took the rare Tuesday opportunity to grant three petitions for review and set them for argument barely 21 days after the order.

Yikes.  I usually like a little more advance notice to clear my schedule, but I guess I could do it, Fortunately, I don’t have to, but my partner here at Andrews Kurth does. 

The SCOTX granted review in CMH Homes, Inc. v. Adam Perez, to be argued by Scott Brister, recently of the Supreme Court of Texas but now of good ol’ Andrews Kurth LLP. 

So he gets to experience the pointy end of a Supreme Court argument. Remember, Judge:

• Questions from the bench are your friend.
• Stop talking when the folks in the black robes start talking; and
• Answer the questions.

I jest.  He obviously has argument experience elsewhere, and he has game.

At issue in Perez is whether there is a remedy in the appellate courts where the parties are at a deadlock and cannot choose the arbitrator in the method set out by their arbitration agreement.

But if there’s not an appellate remedy, Brister can argue that the court ought to treat the appeal as a petition for writ of mandamus as suggested in a concurring opinion in In re D. Wilson Construction Co., 196 S.W.3d 774 (Tex. 2006)--written by . . .  Judge Brister.

So he’s got that going for him.

Which is good.

The best I could ever do is cite to my own law review article. How lame is that? 

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We interrupt this blawg to bring you this news item:

Houston appellate lawyer, Kendall Gray, was recently named "The Most Interesting Man In The World" by universal acclaim of his mother and the LexBlog Network which hosts his appellate blog, The Appellate Record.

When finally tracked down by the international media at his secluded compound, Mr. Gray said, "Kendall Gray is very pleased with the response to the blog in the nerd community, and hopes that law nerds everywhere will continue to find it a useful and entertaining place where they can be empowered and affirmed."

Actually, what really happened was that Colin O'Keefe of Real Lawyers Have Blogs contacted and interviewed me for his podcast about law blogging. Follow this link for a written account of the interview and listen to the podcast here.  It was an entertaining conversation and hopefully included some of my own thoughts about how to be yourself and use your own particular strengths in building a professional life.

Enjoy the podcast. I will now stop referring to myself in the third person, and gladly return you to your regularly scheduled blawg. 

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Several new opinions today from the Supreme Court of Texas.  Here's the skinny:

• Yes, you really do have to arbitrate and just because you say it is unconscionable don't make it so.
• No, a police report preliminarily assigning fault for an accident is not "actual notice," which is required for jurisdiction to obtain under the Texas Tort Claims Act.
• No, Texas is not the forum for the world, especially for Australians killed on offshore rigs located near Singapore.
• No, naturally accumulating ice in a Texas parking lot is not an "unreasonable risk of harm" from which a landowner must protect a business invitee.
• Yes, Baylor College of Medicine and its physicians are governmental entities and employees (respectively) when providing charity care at Ben Taub because the Legislature said so. This involves two cases, one with argument and a concurrence, and one PC.  (Full disclosure and shameless plug: The Andrews Kurth Appellate Practice Group represented the defendants in those cases).
• And finally yes, you may have to forfeit your ill gotten gains, in addition to other damages that result from tortious conduct, if you breach your fiduciary duty by fraudulently inducing your partner to a buy out.

Your SCOTX at work!

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