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

It's hard to get a moment's rest when you are the "Appellate Record."

Sure, it all looks like glamorous parties and premiers, but it can be a grind, what with all the paparazzi and personal appearances and such.

But here at the Appellate Record, we take it all in stride because it's all about you.

And my latest bit of unsolicited advice for "you" involves a Texas Lawyer article containing my thoughts about board certification:

• Why do it?
• Has it made us any better as a profession?
• And most importantly, how do you prepare for the exam?

That exam is a bear, campers. So check out the article and study hard.

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Suppose you were abducted by aliens.

And before you were probed, they asked you to explain what it is that you do and why. If you are an appellate lawyer, how would you explain your job? Why does your job exist and why can't just any old lawyer just do it?

I had to do something similar last week. They weren't extraterrestrials, and I wasn't probed. But they didn't speak my language and they came from a society that has very little in common with our own.

 Here at Andrews Kurth, we had a visiting delegation of judges from China. And my mission, whether I chose to accept it or not. was to create a presentation on American Appellate Practice--a presentation for translation, one sentence at a time, to an audience that does not speak English or even a language from which English derives.

 After the break, a few deep thoughts about appellate lawyers' Raison d'être--in English.

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A little heads up to readers in the Dallas area. The Appellate Record will be on the road, live and in person at the Dallas Bar Association Appellate Law Section on June 16. The seminar will be at the Belo Mansion at high noon.

Robert Gilbreath and I will be presenting a program called "Don't Be Ugly" about how to enhance the persuasive power of your legal writing just through better typography and document design.

• We'll be using actual briefing examples from a number of real cases.
• We'll stack the Microsoft defaults and the briefing rules up against standards of good typography.
• We'll mock Times New Roman.
• We'll joust about footnotes.

It will be nerd-o-riffic. So be there or be square.

Or, squarer.

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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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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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Leonard Bernstein, the celebrated maestro, once opined on  what was the hardest instrument to play:

Second fiddle. I can always get plenty of first violinists, but to find one who plays second violin with as much enthusiasm or second French horn or second flute, now that's a problem. And yet if no one plays second, we have no harmony.

Harry Truman, the celebrated amateur pianist, haberdasher and President of the United States said it like this:

It is amazing what you can accomplish if you do not care who gets the credit.

After the break a few thoughts on what being an appellate lawyer and playing second fiddle have in common.

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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.

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In the first post on this topic, I put forward the idea that appellate lawyers are the chess club of the law world. But beyond ability of a law nerd to bring polished, written analysis to bear, what else makes an appellate lawyer “special”?   

Of course, the most common function of an appellate lawyer is to bring issues of legal error to an appellate court after trial. But a “law focus” affects the way an appellate lawyer approaches every issue. And although my bias is clear, I think it is never too early to talk to the law nerd.

After the jump, you’ll find out why an appellate lawyer can reduce the trial lawyer’s “war room” full of boxes to a single, 1 inch binder.

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