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

This whole law practice thing has been interfering with my blawgorial duties to you, dear reader.

Je regrette.

And yet when I awoke in the country home last week and checked e-mail whilst sipping a hand-crafted beverage and nibbling an artisanal baguette, I was gratified to learn that the ABA Journal had selected The Appellate Record as one of the ABA Journal's Blawg 100.  Guess which category.

(Wait for it)

The Trial Practice Category.

Mon Dieu. C'est tout bonnement horrible.

Mais, hélas, mes amis. There is no Appellate Practice category.

Clearly Texas is one of the few, the proud, the enlightened jurisdictions who recognize that no trial lawyer ought be left alone in an appellate court or really anywhere at all with a pure question of law. 

Or a word processor.

Or a book.

• That's why we have a board certified specialty in civil appeals.
• That's why we do not use the font that dare not speak its name.

But I jest.

We (the royal "we') at the Appellate Record will be gracious and accept this award in the generous spirit in which it was intended. We are gratified to be among the blawgger glitterati such as SCOTUSblog and the Volokh Conspiracy.

But now that means you need to get to work.

Click over to ABA site and VOTE for the appellate record as the most insanely great Trial Practice (*sob*) blawg on the planet with the "Most Interesting Blawger In The World."

Did I mention that you can VOTE.

No street protests or risking life and limb. Just voting with a mouse.

The trial lawyer you save may be your own.

Merci beaucoup.

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This one goes out to all the law students or think you wanna be law students.

It has been a long time since last we met. Long time, no posts. I wasn't completely dead. I was just in trial. So like Westley, a/k/a, the Dread Pirate Roberts in the Princess Bride (a/k/a the greatest movie ever made) I was only mostly dead.

You can doubtless imagine my surprise when I awoke from my mostly dead state on Sunday morning and saw an article on the shortcomings of legal education on the front page of my New York Times. The article detailed how new lawyers graduate from law school not knowing the first thing about how to lawyer. Their firms then have to teach them that pesky lawyering part that the law schools left out.

The article quotes a client:

“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”

Firms try to fill in the skills that the law school left out, but in this environment, clients don't want to pay for that.

Is there anything to be done? Does it have to be this way? After the break, a comment from a crusty old Baylor lawyer about why it ain't necessarily so.

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There's no denying it. We're into the thick of another term at the SCOTX and next week is argument week again. Here's what the high nine have on their plate:

November 8, 2011

• Texas West Oaks Hospital, LP and Texas Hospital Holdings, LLC v. Frederick Williams, No. 10-0603--The expert report hits just keep on coming. If a health care worker is injured by a patient, is THAT a health care liability claim when he sues the hospital?
• In re the Commitment of Michael Bohannan, No. 10-0605--In a second expert case of the day, the Civil Commitment of Sexually Violent Predators Act requires "experts" to be used in making the determination to commit someone. Did the trial court err in finding that this witness was not qualified? 
• Texas Electric Utility Construction, Ltd. v. Infrasource Underground Construction Services, LLC, No. 10-0628--Can you recover attorneys fees as damages when, for example, defense costs are caused by the tort of another?

November 9, 2011

• Kerry Heckman, et al. v. Williamson County, et al., No. 10-0671--Because class certification never goes out of style, how do the named plaintiff's standing and potential mootness impact the ability to seek certification of a class?
• In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No. 10-0687--Can an employee avoid a signed jury waiver by claiming that he only signed the mutual waiver because he thought he would lose his job? (Parenthetically, if so, can there ever be a bench trial in an employment case?)
• Jack Edward Milner v. Vicki Ann Milner, No. 10-0776--In a relatively rare family law case, did the trial court correctly enforce a judgment based upon a Mediated Settlement Agreement over the wife's motion for new trial?

November 10, 2011

• Venkateswarlu Thota and North Texas Cardiology Center v. Margaret Young, No. 09‑0079--whether the jury was properly charged on contributory negligence in a med-mal case involving alleged post-operative complications, and whether the charge was reversible error.
• In re XL Specialty Insurance Co. and Cambridge Integrated Services Group, Inc., No. 10-0960--A potentially significant case for attorney client privilege: does the attorney client privilege extend to communications between counsel for the insurer and the insured made for purposes of rendering legal services to the insurer?
• Nicholas Traxler v. Entergy Gulf States, Inc., No. 10-0970--And from the department of statutory and regulatory minutiae department, was that a "transmission line" or a just an electrical line that zapped the crap out of me? Meaning, did negligence per se apply when a plaintiff got zapped by an electrical line 20 feet six inches above the road, or was that just a power line, which did not have to be 18 inches higher like "transmission lines" have to be?

And don't forget the popcorn, because you can watch the arguments online. I'm especially looking forward to the charge error case. Dinner and a movie anyone?

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I was trolling the blogs not long ago and came across this little number on the ABA Blog about a judge who was scolding criminal defendants that showed up in court wearing baggy pants and showing their drawers.

Which of course reminded me of this episode from American pop culture, the famous "Pants on the Ground" song from some long ago season of American Idol:

 What does this have to do with appellate practice, or indeed law practice at all? The full explanation is after the break, but it has to do with respect.

And if you don't pay attention to it, you too could find yourself in court, "looking like a fool with your pants on the ground."

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So, the first week in October, and it's argument week again, Campers.

The court has nine cases over three days and here are some of the issues to be covered:

October 4:

• SafeShred, Inc. v. Louis Martinez, III, No. 10-0426--Exemplary damages in the context of a Sabine Pilot wrongful discharge claim, including a due process challenge to the ratio of exemplary to actual damages
• Shell Oil Company, et al. v. Ralph Ross, No. 10-0429-- Limitations and tolling for an alleged breach of a mineral lease.
• Weeks Marine, Inc. v. Maximino Garza, No. 10-0435 -- Jones Act Damages

October 5:

• Natural Gas Pipeline Co. v. William Justiss, et al., No. 10-0451--Limitations and sufficiency of evidence in a nuisance claim.
• Hearts Bluff Game Ranch, Inc. v. The State of Texas and the Texas Water Development Board, No. 10-0491--Alleged takings of wetlands mitigation bank for reservoir development.
•  Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, No. 10-0513--whether an alleged assault is a health care liability claim.

October 6:

• Port Elevator-Brownsville, LLC v. Rogelio Casados and Rafaela Casados, No. 10-0523 -- whether the worker's comp bar applies to a temporary worker.
•  In re United Scaffolding, Inc., No. 10-0526 -- can the court mandamus an order granting a new trial on general factual sufficiency and "interest of justice" grounds, or is that specific enough?
• Rusk State Hospital v. Dennis Black and Pam Black, No. 10-0548--in an interlocutory appeal over the expert report in a med mal case, can the state raise subject matter jurisdiction, meaning the failure to invoke an an exception under the Texas Tort Claims Act, for the first time on appeal? 

For the truly geeky (not that there's anything wrong with that), you can watch the arguments streamed live on the interwebs. And they're archived on itunes, right there with the Beatles and This American Life. 

I'm particularly looking forward to the exemplary damages issue on Tuesday, the new trial mandamus on Thursday, as well as watching Houston colleagues Marie Yeates and Brett Busby argue on Tuesday and Wednesday respectively.

Cuz that's how I roll.

It will definitely be must see TV.

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I'm out of town enjoying the State Bar Appellate Seminar, but I just had to drop a quick line.

We here at the Appellate Record have had our fun poking the SCOTX for cases that dated back to antediluvian times when bankers were popular and Lehman Brothers actually existed. 

It seems only fair that we tip our blogorial chapeau when the court puts its boots on and gets the stables cleaned out.

From the looks of it, all nine hands have put noses to grindstones and hands to plows. Since the 2010 term, the court has essentially eliminated its backlog, carrying only four cases forward from last term that had been argued and are awaiting decisions.

And they did it without changing their grant rate (13%) or increasing their shadow docket of cases awaiting a grant or denial of the petition for review.

And during a year when the Legislature was in town to boot!

They just put their boots on one at a time, did the chores, and got it done.

They made hay while the sun shined.

They didn't waste time burnin' daylight, Pilgrim.

They got right back up there on the horse.

You get the idea.

As Kurt Kuhn pointed out during a great presentation at the seminar, this is the lowest number in the history of the court--a court that probably does more with fewer resources than at any time in history.

They're so caught up, they could adopt the practice of the US Supreme Court and start clearing their docket every term.

If they wanted to.

Or not.

I'll stop now, lest they get too big for their britches. 36 arguments are already set into January. I hope they ain't bit off more'n they can chew.

In any event, "Chapeau" to the high nine.

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Hat tip to the ABA Blog for another tale of woe about attorneys who worsened their fate with bad spelling.

A New York judge was concerned that defense counsel lacked the necessary "game" to handle the high profile murder case before the court.

Among the reasons? Facebook comments and bad spelling. According to the ABA Blog:

Firetog scolded the lawyers for complaining about press coverage of the case after giving media interviews and posting comments on Facebook. He even chastised the lawyers for misspelling “canon” in a reference to ethics, the Times says. “Two N’s means a cannon that shoots at something,” he said.

So remember, campers, an ethical canon is what attorneys must obey. An ethical cannon is an artillery piece that obeys the rules of engagement.

The career you save could be your own.

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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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My recent homily in the Texas Lawyer mentioned how and why the Texas Supreme Court tends to grant statutory cases. This week's new opinions surely reflect that statutory bias. They are wall-to-wall statutory cases.

• Travis Central Appraisal District v. Norman involves whether the Legislature's amendment to the Labor Code undid the Supreme Court's prior construction of the act in City of LaPorte v. Barfield. Answer: yes. The Court had previously held that the Labor Code waived immunity of political subdivisions as against retaliatory discharge/workers comp claims.  After the amendment, the Appraisal District now had immunity. Justice Medina wrote the opinion.
•  Loftin v. Lee involved the application of the Texas Equine Activity Limitation of Liability Act (yes, there is one), which limits liability for the inherent risks of equine activity--e.g., horse back riding. Justice Hecht, writing for the Court, broadly applied the act to risks that, in their general character, are associated with activities involving equine animals, and also held that the failure to fully assess a rider's skill is no basis for liability if that failure did not cause the injury.
• Roccaforte v. Jefferson County involved the question of whether personal service of notice of a claim on the county judge and county or district attorney was good enough, even though Section 89.0041 of the Local Government Code required registered or certified mail. Chief Justice Jefferson, writing for the majority, said it was. Justice Willett would have held that it was not, but concurred in the result, finding waiver because the County had engaged in litigation for two years and waited for limitations to expire before complaining.
• On denial of rehearing in Turtle Health Care v. Linan, the Judge Per Curiam construed the Texas Medical Liability Act to the effect that claims complaining about the failure of a ventilator without properly charged batteries could not be brought outside the Act and its requirements for expert reports.

But just to keep Mr. Smarty Pants Blogger in his place, the Court granted a non-statutory petition for review, Texas Electric Utility Construction v. Infrasource Underground Construction Services, positing the question of whether attorneys fees can be recovered as damages for conversion when the unauthorized use of the converted property results in an injury and a lawsuit that the owner winds up defending.

Next week, we'll have another very special guest expert on the blog, this time on the issue of how to write for screen readers.

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Great institutions only become great if their people build them that way.

Texas lost just such a builder on February 11 with the death of Justice Joe Greenhill.

After the jump, we feature a personal remembrance of Judge Greenhill by my colleague, Judge Scott Brister, who served as Judge Greenhill's law clerk before later serving on the Supreme Court of Texas himself.

Pictured: Judge Greenhill (left) and Judge Scott Brister (right) on the occasion of Judge Greenhill's last visit to the Court in 2007.

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Just a wee bit of an advertisement today for the DRI Appellate Advocacy Seminar coming up in March near the Land of Mouse in Orlando Florida. 

The seminar is actually relevant to the typography discussion that we've been having these last weeks, because I can really trace my interest in the topic to a presentation two seminars ago when Ruth Anne Robbins presented her "Painting with Print" paper.

This year's seminar also promises to be a great place to charge your batteries, pump up your brain cells and get some new ideas to sharpen up your practice. 

Check out the course brochure (pdf). I am particularly looking forward to the presentation on writing a brief that judges will want to read, as well as the presentation on technology and the future of appellate practice.

The course materials just happen to be sponsored by my firm, Andrews Kurth LLP. Who knew?

And I'll be there. So you've got that going for you.  Which is good.

Check out the info on Facebook or Linkedin or on the DRI website. 

If you attend, be sure to introduce yourself. I'll be the one in the bow tie.

A good time will be had by all. 

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Many thanks to Jason Shyung, blog contributor and recent Fifth Circuit clerk, for lending a hand in compiling this material, because the Fifth Circuit has been busy this holiday season. It has released a number of opinions that should be of interest to civil practitioners:

• Cal-Dive Int’l, Inc. v. Seabright Ins. Co. (pdf) reverses a district court’s determination that Seabright Insurance Company had a duty to defend a certain personal-injury lawsuit. The court found that Seabright was absolved from any duty to defend the lawsuit because:

(1) Seabright’s policy included a “Protection and Indemnity” exclusion that removed from coverage any injuries covered by another protection and indemnity policy; and

(2) it was undisputed that such a policy existed and covered the injuries at issue. Judge Davis wrote the court’s opinion.

• Overstreet v. El Paso Disposal, L.P. (pdf) affirms a district court’s grant of injunctive relief under Section 10(j) of the Labor Relations Management Act. In its decision, the Fifth Circuit made a number of significant holdings, including the following:

(1) injunctive relief under Section 10(j) of the Labor Relations Management Act is not governed by the traditional four-part equitable test for injunctive relief that requires a showing of irreparable harm;

(2) the National Labor Relations Board (“NLRB”) may delegate its authority to seek injunctive relief under Section 10(j) to its General Counsel;

(3) the NLRB’s General Counsel does not lose any authority delegated to him or her when the NLRB does not have a quorum to do business if it had such a quorum at the time it delegated the particular authority at issue; and

(4) a district court in granting injunctive relief may not order a party to agree to a bargaining proposal.

Judge Wiener wrote the court’s opinion.

• Freeman v. Quicken Loans, Inc. (pdf) holds that section 8(b) of the Real Estate Settlement Procedures Act does not prohibit a lender from charging borrowers loan discount fees or loan processing fees at the closing of a mortgage transaction so long as the lender does not split the fees with another party. Chief Judge Jones wrote the majority opinion. Judge Higginbotham dissented.
• Keller Founds., Inc. v. Wausau Underwrites Ins. Co. (pdf) holds that non-assignment clauses in insurance policies are enforceable under Texas law and coverage does not transfer to an alleged "successor" by operation of law where the policies are excluded from an asset transfer. Judge Owen wrote the court’s opinion. 

 Thanks again to Jason and stay tuned for more Nerdlaws to come. 

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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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Have I said lately why "my" courts rock here in Houston?  Hat tip to the Texas Lawyer Blog for tipping me off on this story. 

Justice Jane Bland of the First Court of Appeals here in Houston will be honored by Chief Justice John Roberts at the Supreme Court of the United States:

Justice Jane Bland . . .   will receive the National Center for State Court’s 2010 William H. Rehnquist Award for Judicial Excellence at a ceremony tonight at the U.S. Supreme Court in Washington, D.C. U.S. Supreme Court Chief Justice John Roberts will make the presentation to Bland . . . . Mary C. McQueen, president of the National Center for State Courts, noted in a news release on the NCSC website that the center recognized Bland for her outstanding skill as a state trial and appellate judge and for her commitment to giving back to the community through bar and volunteer work.

I love seeing good people get recognized, and Justice Bland is "good people."  Justice Bland is smart as a whip, is always prepared, listens, asks good questions, and works hard with the goal of coming to the right answer.  Win or lose, what more could you ask for in a judge? 

And here in Houston, Justice Bland is not alone in those qualities.  Look down the benches and you'll see.  We have it good here in Harris County, Texas.

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A quick bit of news especially relevant to our Texas and Houston readers.

Texas Governor, Rick Perry, has appointed Harvey G. Brown of the firm Wright, Brown & Close LLP as justice of the First Court of Appeals here in Houston. 

Brown, who formerly served as Judge of the 152nd District Court in Harris County, will take the place formerly occupied by Justice George C. Hanks.  His term will expire at the next general election.

Brown is a Texas "Super Lawyer," a frequent and highly sought after CLE speaker, and he writes with a very high level of scholarship on a variety of issues including the uses and admissibility of expert testimony (pdf). 

Both before and after serving on the trial bench, Brown pursued an active and sophisticated civil trial and appellate practice here in Houston.  He will join a bench that I already consider one of the smartest and best prepared of any that I get to argue before. 

Congratulations to Justice Brown and to Governor Perry for a well-made selection.

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Hat tip to the Texas Lawyer's Tex Parte Blog for making me aware of an interesting story.

The National Cowgirl Museum and Hall of Fame in Fort Worth, Texas has inducted Hortense Ward, the first woman admitted to the practice of law in Texas, because cowgirls like her make an impact.

From the Tex Parte Blog:

After Ward was admitted to the bar, she also became the first woman from Texas — as well as from below the Mason-Dixon line — to be admitted to practice before the U.S. Supreme Court. As president of the Houston Equal Suffrage Association, she was the first woman registered to vote in Harris County and in the 1920s helped elect the first woman Texas governor, Miriam A. “Ma” Ferguson. She also led the charge to pass the Married Women’s Property Act, allowing married Texas women to control their own property and earnings.

Now, of course there are three women serving on the US Supreme Court and two on the Supreme Court of Texas.  Indeed, Justice Harriet O'Neill served as Acting Chief Justice of our state supreme court shortly before she retired, and it was so normal and common place that it almost passed without notice.

Interesting side note: Hortense Ward may have been first at the bar, but she was second in the Cowgirl Hall of Fame.  I daresay you've heard of the first cowgirl, rancher's daughter Sandra Day O'Connor. 

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Several new opinions today from the Supreme Court of Texas.  The most notable is the court's choice to reverse it's position in Marks v. St. Luke's Episcopal Hospital, a highly divided case that has been pending on rehearing since last August. I hope to write a future post on whether such delays and such reversals are a good thing.  (They are not).

Rather than reinvent the wheel and write up summaries of all of today's opinions, I'll refer you to a great, down and dirty summary of the issues on Don Cruse's SCOTX Blog.

After the break, this post will focus on the new petitions for review.

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Did you notice when the Fifth Circuit ceased to be?

Let me explain.

No, let me sum up.

The Fifth Circuit ceased to exist for one particular case.  The result was a non-en-banc en banc reversal of the panel opinion, and the non-affirmance affirmance of the the district court opinion. 

I am referring to Comer v. Murphy Oil.  The District Court dismissed the case holding that hurricane victims could not sue the military industrial complex for worsening their hurricane damage by contributing to global warming.

A panel of the Fifth Circuit held, "yes you can."

The en banc court said, "no you can't"

Except it didn't.  Well, kinda.  After the jump, an explanation and a recommendation. 

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The next Fifth Circuit Judge may be a Mississippian.  Yesterday, President Obama nominated James E. Graves, Jr. to fill a vacancy on the United States Court of Appeals for the Fifth Circuit.  Justice Graves currently serves as the presiding justice on the Mississippi Supreme Court and had a wide range of prior experience as a trial judge, teacher, and public servant. 

The official announcement reads:

“Throughout his career James E. Graves has shown unwavering integrity and an outstanding commitment to public service,” said President Obama.  “I am proud to nominate him to serve on the United States Court of Appeals.”

Some highlights from Justice Graves' bio at the Mississippi Supreme Court are:

Presiding Justice James E. Graves, Jr., has served on the Mississippi Supreme Court since 2001. He was appointed to the Court by Governor Ronnie Musgrove and later won election to the Court in 2004. Prior to serving on the Mississippi Supreme Court, Justice Graves served as a Circuit Court Judge in Hinds County, Mississippi, for ten years.

Justice Graves was born and raised in Clinton, Mississippi. After graduating as the valedictorian of his high school class, he attended Millsaps College and graduated with a Bachelor of Arts Degree in Sociology. He received his law degree from Syracuse University College of Law and a Master of Public Administration degree from the Maxwell School of Citizenship and Public Affairs at Syracuse University.

* * *
Justice Graves’ background in teaching and education includes serving as a Teaching Team Member of the Trial Advocacy Workshop at Harvard Law School since 1998 and serving as an adjunct professor teaching media law, civil rights law, and sociology of law at Millsaps College, Tougaloo College, and Jackson State University.

* * *

A renowned orator, Justice Graves frequently speaks at universities, schools, churches, and conventions throughout the country. His past speaking engagements include a keynote address at the International Reading Association’s 50th Annual Convention.

Hat tip to Howard Bashman at How Appealing.

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We at the Appellate Record are not omniscient.  It only seems that way.  Last week's prediction (although no great leap of logic) was correct.  Two full days of conference at the Supreme Court of Texas did result in some actions on the A-Agenda. 

• The Court issued opinions in eight causes.
• The Court granted five petitions for review and set one petition for writ of mandamus for argument.
• The arguments in the new causes are calendared to take place April 14 and 15. 

Alas, "the practice" interferes with my blog habit today.  Nevertheless, hearty hat tip to Don Cruse at the Supreme Court of Texas Blog for the down and dirty summary of the day's cases and links to the briefing in the new causes.  

Continue watch this space as well for further analysis in the days to come of the new opinions and the issues to be reviewed in the new causes.

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