I recently attended a continuing legal education seminar co-sponsored by the Dallas Bar Association’s appellate section and the Tarrant County Bar Association’s appellate section. At the CLE, justices and staff attorneys from the Dallas Court of Appeals and the Fort Worth Court of Appeals shared insights as to their preferences. Here are 21 things that the justices and staff attorneys want you to know:
1. Always confirm that your citations to the record and to legal authority are not misleading. The court knows that misleading citations are likely accidental, but such accidents hurt an attorney’s credibility with the court nonetheless.
2. If there is something in the record which might hurt your argument, be sure to address it and explain why it is not as problematic as it might appear. Appellate judges are not impressed with a lack of candor.
3. Be sure to include the volume number in your record references. Even if the volumes are consecutively paginated (so that no two volumes contain a page with the same page number), it is still quite helpful to include the volume number. Otherwise, the court may have to open several volumes of the record to find the page that you are citing.
4. There is nothing wrong with citing to a document in your brief’s appendix. But, when doing so, your citation should also indicate where that document can be found in the appellate record. If you include a citation which specifies where in the appendix the document is located but your citation does not specify where in the record the document is located, the court may suspect that the document is not contained in the record. And the court cannot consider documents which are in the appendix but are not in the record.
5. If citing to an exhibit in the reporter’s record and that exhibit is lengthy, your citation to that exhibit should include more than the exhibit number. Specifically, it is quite helpful to provide some guidance to the court about what portion of that exhibit supports the point that you are trying to make.
6. The rules of appellate procedure require items in the appendix to be bookmarked but do not require bookmarking for the rest of the brief. However, bookmarking the body of the brief can be very helpful to the reader. For example, if someone wants to re-read your argument about appellate issue number two, a bookmark will allow her to jump directly to that argument without having to flip back to your table of contents, locate the appropriate page number, and then flip to that page number.
7. If you are going to include an explanation of why oral argument would be helpful to the court, do not simply use boilerplate language. Boilerplate language, by definition, is language that could be cut-and-pasted into another appellate brief. As such, boilerplate language does not constitute an explanation of why oral argument would be helpful in your case. So, if you are going to include an explanation of why oral argument would be helpful to the court, make that explanation specific to your case.
8. If you are planning to file a motion requesting emergency relief from the court, it is helpful to call the court clerk and advise her of this in advance so that she can ask the justices to plan their schedules accordingly. Be prepared to give her an approximate time that you will be filing your motion. If your plans change and you will be filing your motion much later than the time you expected (or not filing it all), you should call the clerk and advise her of the change. Otherwise, justices may be staying at the courthouse needlessly (e.g., skipping lunch or staying after hours) waiting for a motion that does not arrive. And that will probably not make them happy.
9. Under the old rules, briefs were governed by page limitations, and certain pages (e.g., the table of contents) did not count toward those limitations. So, it was customary to use little Roman numerals on those pages and then begin using Arabic numbers on the first page that counted toward the page limits. However, the new rules limit the number of words rather than the number of pages. So, using little Roman numerals on certain pages and Arabic numbers on other pages no longer serves any purpose. And using this old numbering convention makes it tougher for the court to navigate your brief in Adobe Reader. Specifically, when you use this old numbering convention, a reader who wants to jump to a specific Arabic page number in your brief cannot do so by typing that page number into the page number box in Abobe Reader. To eliminate this problem, you should consecutively number all of your pages (including your cover page) with Arabic numbers. If you’d like, you may suppress the number “1” from showing on your cover page. Doing so would still have number “2” show on your second page and would not impact the court’s ability to easily navigate your brief.
10. If you intend at oral argument to refer to legal authority which was not cited in your brief, you should send a letter to the court and to opposing counsel advising of the legal authority prior to the oral argument. When you do so, the court and opposing counsel can review the legal authority in advance and be prepared to address it.
11. When filing a motion for rehearing, be especially careful about your tone. If you are trying to get the court to reverse itself, it is not helpful to be disrespectful in your analysis of the court’s own opinion. Also, a motion for rehearing should not be used to merely re-argue what you’ve already argued. If the justices did not agree with your argument, repeating the same argument to them is not likely to change their minds.
12. When drafting an appellant’s brief, do not be so focused on emphasizing the trial court’s error that you ignore equally important matters such how the standard of review is satisfied, how error was preserved, how your client was harmed by the error, and the relief you are requesting from the court of appeals.
13. When drafting an appellee’s brief, if you choose not to address the appellant’s arguments in the same order as the appellant did in her brief, it is helpful to explain how your arguments match up to the appellant’s arguments. If you do not do so, it might be difficult for the court to locate your response to a particular argument made in the appellant’s brief. It is possible that the court might even mistakenly believe that you failed to respond to the argument at all.
14. If you are asked a hypothetical question at oral argument, answer that hypothetical question. After doing so, if you’d like, you may distinguish the hypothetical scenario from the facts of your case. But don’t simply skirt the judge’s question. If the judge is asking you a question, she would like her question to be answered rather than hear your commentary as to why it was a bad question.
15. At oral argument, spend little (if any) time reciting the facts. When an attorney begins her oral argument with a detailed recitation of the facts, judges may consider this a waste of their time. The judges may even consider it to be a suggestion that you don’t believe that they spent the time necessary to prepare for oral argument.
16. When drafting a petition for writ of mandamus, remember that mandamus is an extraordinary remedy. For a mandamus petition to be granted, the petition must explain why the situation at hand is truly extraordinary. A trial court judge committing an error (even a harmful, reversible error) is simply not extraordinary.
17. In your mandamus petition, you should explain why there is no adequate remedy otherwise available. This is a critical component of securing mandamus relief, but it is often omitted or inadequately addressed. Many mandamus petitions apparently include this component as an afterthought, and those petitions are rarely if ever granted.
18. If you are filing a mandamus petition and there is an upcoming date that is important to your petition (e.g., a fast-approaching trial setting), be sure to point this out at the beginning of your petition. The court is often juggling many urgent matters. If you’d like your case to jump to the front of the line, you should make it obvious at a glance why it is critical that your case be decided before a certain date.
19. When you are filing a mandamus petition, and your filing is not being made shortly after the trial court first made the ruling that you are seeking relief from, it is important that you explain the delay. Otherwise, it may seem to the court that you took your time in requesting relief but nevertheless would like the court to expedite its work on the case. Needless to say, that perception would not be helpful to your case.
20. Insert a record reference into your brief at every possible opportunity. It is a huge red flag to the court if a brief is not covered in record references.
21. Be respectful in all references to everyone – the trial court judge, opposing counsel, opposing parties, etc. Personal attacks will not accomplish anything and might very well have the opposite of the intended effect.
Thank you to Dallas Court of Appeals Justices Douglas Lang and Bill Whitehill, Fort Court of Appeals Justices Anne Gardner and Bill Meier, Dallas Court of Appeals staff attorneys Greg Lensing and Cliffie Wesson, and Fort Worth Court of Appeals staff attorneys Rebecca Heinemann and Lisa West for offering so many helpful tips.