2017 04-07 ytio hockema cle slidedeck

Your Trial Is Over—Now What?

Guidance on Perfecting and Pursuing

a State Civil Appeal

D. Todd SmithSmith Law Group LLLP

www.appealsplus.com

David Hockema Civil Trial Law Conference

April 7, 2017

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Overview:

• You have obtained a jury verdict or concluded a bench trial in state trial court

• What are the critical next steps?

▫ Strategies for obtaining appellate attorney fees

▫ Formulating and opposing a final judgment

▫ Requesting FOF & COL

▫ Post-verdict preservation of error

▫ Enforcing and superseding the judgment

▫ Initial steps toward taking an appeal

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Estimating Appellate Attorney Fees:

• Start thinking about this long before trial

▫ Pleadings → pray for fees through appeal

▫ Discovery → designate an appellate fee expert

• Often overlooked and underestimated

▫ Detrimental to your client

▫ Can establish client expectations youdon’t want

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What’s the First Step

After You WIN?

Celebrate, of course!

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Next Step: Take Off the Trial Goggles

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“Dude, my case looks AWESOME with these on.”

Trial Goggles: Common Myths of

“Copy & Paste” and the “Two Step” Appeal

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“My trial lawyer said that all the hard work has already been done,

and we’re TOTALLY going to win the appeal.”

Estimating Appellate Attorney Fees: (cont’d)

• The “form book” problem▫ $5,000 is not a sufficient award▫ Lawyers and judges need to be broken of this mindset

• Amount depends on:▫ Having a realistic view of the case – not just a repackaged view▫ The basic steps required on appeal – not the Texas Two-Step

• Several factors to consider in estimate▫ Pre- and post-judgment activities▫ Perfecting appeal, pre-briefing activity, legal research, drafting and editing,

analyzing your opponent’s brief, etc.▫ SCOTX proceedings, if any▫ Post-appeal activity

• Even if you don’t get everything you ask for, the exercise is useful in client counseling

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The Actual Fee Award:

• Properly prove up and secure the award:▫ Just like any fees: Sufficient evidence required!

▫ Consider bifurcating trial

▫ Award must be conditioned on appellate success

▫ Post-judgment interest is allowed on all attorney’s fees, but it does not begin to accrue on appellate fees until the appellate court renders judgment

• … Or successfully defend against the award

• Advise your client about realistic expectations and appellate strategy

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Crafting a Proposed Judgment:

• Should you file a motion for judgment?▫ If you lost, and you’re the movant, approve as to form only and

use prefatory language (775 S.W.2d 632)

▫ Otherwise, risk waiving appellate rights

• Judgment elements▫ Describe the parties and proceedings

▫ Relief awarded on the merits / election of remedies

▫ Attorney fees awarded – detailed breakdown

▫ Pre-and post-judgment interest – a (boring) CLE talk unto itself

▫ Costs

▫ Language of finality and execution

▫ Dated signature line for judge

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Findings of Fact & Conclusions of Law

• Beware! It’s more complicated than you think.

• Remember the Big Picture/Purpose:

▫ Winner: Protect your winning judgment

▫ Loser: (1) Narrow the issues for appeal(2) Let there be reversible error

▫ Both: Extend appellate deadlines (sometimes)

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FOF/COL (cont’d)

If properly & timely requested, then:

• Appropriate & Required following ▫ Bench trials and

▫ Issues tried to the bench

• Appropriate but Discretionary following▫ Appealable order/judgment upon evidentiary hearing

and ▫ Appealable interlocutory orders

• Family Code: special rules

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FOF/COL (cont’d)

• Not appropriate to request, file, or consider on appeal when:

▫ Judgment is rendered as a

matter of law on undisputed

material facts

▫ Non-evidentiary dismissals and defaults

• No extension of appellate deadlines

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FOF/COL (cont’d)

• 1st Request: 20 days from Judgment▫ Winner submits Proposed FOF/COL

▫ 1st Deadline for Entry: 20 days from Request

• 2nd Request: 30 days from Request▫ “Past Due Notice”

▫ 2nd Deadline for Entry: 40 days fromoriginal request

• 3rd Request: 10 days from Entry of FOF/COL▫ “Request for Additional/Amended” (+ Objections?)

▫ 3rd Deadline for Entry: 10 days from 3rd Request

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Post-Verdict Error Preservation:

• Most errors are preserved during trial

• But remember post-verdict preservation: ▫ TRAP 33.1▫ TRCP 301, 324, 329b

• Jury trial: You MUST file a MNT (and pay the FEE) within 30 days of judgment to raise:▫ Factual sufficiency▫ Complaint on which evidence must be heard (i.e., jury misconduct or

newly discovered evidence)▫ Inadequacy or excessiveness of damages▫ Incurable jury argument not already ruled on

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Post-Verdict Error Preservation (cont’d)

• Jury trial: To preserve legal sufficiency challenges, file:▫ Motion for JNOV

▫ Motion to disregard the jury’s answer to a fact issue

▫ Motion for new trial specifically raising the complaint

▫ Preserved during trial by motion for directed verdictor charge objection

• If a Motion for NEW TRIAL all you bring,

then a NEW TRIAL is the most you’ll get!

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Superseding & Enforcing the Judgment:

• Perfecting appeal does NOT suspend!

• Methods▫ Bond or cash deposit

▫ Written agreement

▫ Alternate security as ordered by the court

• Calculation of security for a money judgment:▫ Compensatory damages awarded in the judgment

▫ Interest for the estimated duration of the appeal

▫ Costs awarded in the judgment

▫ But not attorney fees unless they are a separate element of damages (sigh…)

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Some Forthcoming Free Tools:

• supersedeascalculator.com ▫ Online form that calculates amount of security needed to

supersede a particular judgment

▫ Currently in development

• postjudgmentinterestcalculator.com▫ Online form that calculates postjudgment interest and judgment

payoff amount

▫ Should go live any day

• Bookmark the sites for later reference or email [email protected] to get access when they are available

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mailto:[email protected]

Other Supersedeas Issues:

• Supersedeas caps▫ LESSER of 50% debtor’s net worth

or $25M

▫ Net worth affidavit + TRAP 24.2(c)

= STAY pending a potential contest

▫ Negative net worth = Nø bond

▫ Makes it easier for debtors to appeal

• Adjustment of supersedeas amount▫ Proof of “substantial economic harm” = deviate from formula

▫ Trial court retains jurisdiction to adjust amount and type of security

▫ Court of appeals can review on motion

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He’s missing all the important

stuff!

Commencement & Perfection of Appeal

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Calculating the Deadline to Perfect Appeal:

• Runs from date that judgment or order is SIGNED

▫ TRAP 26.1, with limited exceptions

• Deadline varies by type of appeal▫ Regular appeal: 30 days

▫ Accelerated appeal: 20 days

▫ Restricted appeal: 6 months

▫ Cross-appeal: 30 days from judgment

or 14 days from 1st NOA (if timely)

• Motion for extension of time is available

▫ TRAP 10.1, TRAP 26.3

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Steps to Perfect Appeal:

• Notice of Appeal (TRAP 25.1(c))

▫ File in trial court only

▫ Special language required for: accelerated appeal

restricted appeals

▫ Consider if cross-appeal is necessary (vs. cross-issue)

• Filing fee: $205

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Other Initial Steps:

• Docketing Statement▫ Was specific to each court’s website

▫ Now it is UNIFORM in all courts

▫ Download and complete electronically

▫ Must file “promptly” after NOA (TRAP 32)

• E-filing is now mandatory in appellate courts▫ Read the rules to avoid getting bounced

▫ Redaction – watch for confidential information

▫ Court websites have helpful resources

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Other Initial Steps (cont’d)

• Every Texas attorney is now required to register an email address for service through the MyTexasBar page

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• Register for CaseMail (electronic updates)as soon as the appeal is docketed to receivenotification of “case events”

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• Request Clerk’s & Reporter’s Records▫ Written request, served on all parties

▫ Make arrangements to pay

▫ Specify contents – but don’t request unnecessary contents

▫ Can request supplementation

▫ Clerk has deadline to file, but often takes longer

▫ Briefing deadline runs from filing of record

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• Get a copy of the record• CaseMail will tell you when filed

• But never pay a trial-court clerk or a courtreporter for the record

• Getting a copy by:▫ Calling the appellate clerk and asking if they’ll

email or burn to disc

▫ Better yet, take advantage of the brand-newAttorney Portal

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Attorney Portal

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Attorney Portal (cont’d)

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Attorney Portal

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Advising the Client About the Realistic

Expectations for Appeal:

• Two key questions:

1. Should we appeal?

2. If so, which issues

should we raise?

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Expectations Analysis:

• Factors to consider:▫ Standard of review

▫ Chances of success

▫ Likely costs / expenses

▫ Anticipated timing / overall duration

▫ Temperament of our potential panel on these issues

▫ Settlement possibilities and impact of appeal

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Helpful Resources:

• Office of Court Administration website▫ Statistics for every court in the state

▫ Dispositions and average times

• Reasons for Reversal▫ Breaks down statistics

▫ By court and type of case

• An appellate lawyer!

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And Remember…

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FriendsDon’t Let Friends

Appeal with their Trial

Goggles On!

D. Todd SmithSmith Law Group LLLP

www.appealsplus.com

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