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

Regular readers will remember the recent post where I kvetched about the tendency of SCOTUS judges to write "page turners"--and not in a good way.  Those are opinions in which you can't tell what is going on for lack of a good introductory paragraph to help you organize the information.  Instead you must wade through recitations of legal history, factual history, procedural history, and sometimes history history, all while wondering:

Is this going to be on the test?

If that post was a wag of my blogging finger, consider this a tip of my bloggorial chapeau.  For in addition to being the Chuck Norris of the legal world, the Chief Justice of the Supreme Court of Texas shows his federal brethren how it is supposed to be done.

Consider the introductory paragraph from Grant Thornton v. Prospect High Income Fund.  It gives you enough information to fully understand what the issue is, why it is important, who wins and why:

Certified accountants audit companies for many purposes, not least of which is to provide corporate directors with an objective assessment of their companies’ performance. Audits are also prepared to give information to a specific investor who the auditor knows will rely on its contents. We must decide whether the law imposes an obligation on the auditor to provide an accurate accounting not to the corporation or known investor, but to anyone who reads and relies on it. We conclude that it does not. Likewise, we hold that the particular investors involved in this case could not have justifiably relied on the audit reports as to purchases made after they knew the corporation was at risk of financial ruin, and they may not substitute their escrow agent’s reliance for their own without also being bound by its knowledge. Finally, we reject the investors’ “holder” claims—claims not that they bought or sold securities based on the auditor’s reports, but that they held them when they otherwise would not have—in the absence of a direct communication with the auditors. For these reasons, we reverse in part the court of appeals’ judgment and render judgment that the investors take nothing.

All of this comes in the first paragraph. And because it does, any other page in the opinion makes sense.  The opinion hangs together whether it is read straight through (which, let's face it, hardly ever happens) or in single issue snatches while writing your own brief.  And because you know how the story ends, you never have to guess about which facts or procedural events are important. 

It's not much of a way to write a mystery or a thriller, but it's the perfect way to write your brief if you want it to be read and understood. 

Or you could go for mystery.

So here's to you, Mr. Good Summary Introductory Paragraph Guy.  We doff our collective hat.

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The year 1999.  You're an appellate lawyer in a silk stocking firm in Houston, Texas.  You hear someone running toward your office door.  The door bursts open to reveal a trial lawyer, pupils dilated and sweat beading on his forehead. 

His client, Mega Co., just had a hearing on its 5000 page motion for summary judgment (that the trial lawyer insisted on drafting himself) and lost.  A fact question.  Who knew?

Now they are set for trial in a month but he vowed to Mega Co.'s CEO that they were going to stop the trial and appeal "all the way to the Supreme Court."

That's why he came to see you.  "I want you to handle the appeal."  He feels like he's offering you a plum piece of work that will keep you fully and lucratively employed for some time to come.

You invite him to sit down, perhaps offer him a beverage, before informing him that you will not be handling the appeal because there is nothing to appeal.

There is no appeal from an interlocutory order denying the garden variety summary judgment.  Everybody knows that.

"But this is truly extraordinary," he says.  "What about one of those mandamus things?"

After ascertaining that the only thing extraordinary about this proceeding is that this trial lawyer prefers not to lose, you answer, "No.  A denial of summary judgment is not reviewable by mandamus."  Everyone knows that, you add to yourself. 

Flash forward a decade, and the answer is not so clear.  But it is not nearly as murky as some folks complain.  You just have to understand the Chuck Norris exception to restrictions on mandamus review.

After the jump, my own take on why the Supreme Court of Texas is like Chuck Norris when determining whether mandamus should issue because appellate remedies are inadequate. 

Last Friday, the Supreme Court of Texas released In re United Services Automobile Association ("USAA") (pdf), which involves the granting of a petition for writ of mandamus to overturn the denial of a motion for summary judgment.  For some, this must be the final sign of the coming apocalypse. 

These are the signs, according to the prophets doom:

• In 1992, former Chief Justice Phillips wrote Walker v. Packer and placed neat categories around those things for which an appellate remedy is inadequate. 
• But by 1996, things started to erode when Justice Spector wrote CSR Ltd. v. Link and allowed mandamus review of personal jurisdiction, at least in an extraordinary, mass tort setting.
• Then in 2004, Justice Hecht wrote In re Prudential by channeling his inner Stephen Breyer and promulgating a multi-factor, case-by-case-cost-benefit-analysis to determine whether an appellate remedy was adequate. 
• Then in 2008, Justice Brister (now of the Andrews Kurth Appellate Practice Group) drank the electric Kool Aid and wrote In re McAllen Medical Center, a footnote laden variation on the theme of "we know it when we see it."

And now, the soothsayers say, the Supreme Court will hand out mandamus relief willy nilly, like dealers at a music festival.  We're reviewing the denial of summary judgment, the prophets moan.  Mass hysteria.  Dogs and cats living together.  Locusts.  Frogs.  Angels of death.

But I don't think the end is near.  At least not because of Walker v. Packer. There is a standard here if you look carefully enough.  It is the Chuck Norris standard. It is the right of the court system to defend itself.

You know the plot of the typical Chuck Norris movie: the beginning will have some minor skirmishes or the "bad fight" where Chuck gets beat up and has to muddle through.  But eventually, the bad guy will pick on Chuck's girl or commit some calumny that is sufficiently odious and Chuck goes medieval and starts to round-house kick everything in sight.

Well, that's the new, extra-Walker-v.-Packer mandamus standard.  Not every horrible ruling is subject to mandamus review.  But the cost-benefit balance will allow the Court System to resort to self-defense.

The Court System and Chief Justice Jefferson are Chuck Norris.  And Chuck does not want to round-house kick your trial court case.  But the Court System (Chuck) has a right to defend itself from being abused.  If you try to game the system, especially where there is a legislative policy stated to the contrary, Chuck (the Court System) will issue a mandamus (round-house kick) to your face.

Just look at the three cases Chief Justice Jefferson relies on in USAA:

• CSR Ltd. involved untold hordes of plaintiffs who tried to game the system by marooning a foreign defendant in Texas where it had no jurisdictional contacts and (the plaintiffs thought) no way of escape other than settlement--a civil justice hostage taking.
• Prudential involved a party who agreed not to put its contractual counterpart or the Court System through a jury trial but tried to do so anyway, thinking it might impose the costs and hide behind the "harmless error rule" in the event that it's gambit resulted in a nice verdict.
• McAllen Medical Center involved upholding the legislative value judgment that medical malpractice plaintiffs not encumber the civil justice system (or the medical profession) with claims lacking medical expert support.
• And then USAA involved a second useless trial, made necessary only because of the plaintiff's strategic decision to pursue the first trial in a court without jurisdiction. 

So, while the cost-benefit analysis may be mushier than the categories in Walker v. Packer, these cases have something in common.  The courts will strike that balance in favor of mandamus relief when necessary to protect the system from abuse. 

Said differently, Chief Justice Jefferson may seem quiet, reserved and dignified on the surface, but like Chuck Norris, he has a wicked round-house kick when provoked.

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It was forum shopping day at the Supreme Court of Texas.  The Court released two mandamuses mandamii mandamae opinions granting petitions for writ of mandamus in which choice of forum was key.

• In re United Services Automobile Association (pdf) involves the question of whether limitations ought to have been tolled (it was not) where the plaintiff's claim exceeded the jurisdictional limits of the county court at law where he chose to file it.  Tolling depends upon whether the filing was made in "intentional disregard of proper jurisdiction" (it was).  Chief Justice Jefferson wrote the Court's opinion.
• In re Liabe Corporation (pdf) involves application of a forum selection clause to commercial actors complaining about equipment that did not work right.  The court only had to resolve fairly pedestrian contract formation questions about whether the plaintiff really really really agreed to bring suit in Indiana (it did) and whether The Hoosier State was really really really inconvenient (it was not).  As a result, the prolific Justice Per Curiam wrote the opinion.

I want to read United Services in more detail this weekend and perhaps write more.  It is certainly a new candidate to be added to the Practice Court reading list at Baylor Law School, highlighting as it does the complexity of trial court jurisdiction in Texas.  Fodder for Socratic torture questioning that is.  United Services also includes some important new wrinkles to the "inadequate remedy by appeal" standard given that denial of summary judgment is ordinarily not a subject for mandamus relief.

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