The Dallas Bar Association’s appellate section recently hosted a panel of the four newest Dallas Court of Appeals justices. Justice Ada Brown joined the court in 2013, Justice Craig Stoddart joined the court in 2014, and Justice Bill Whitehill and Justice David Schenck both joined the court in 2015. The judges offered some great tips for practice before the court.
The judges agreed that an appellant’s brief should not be limited to arguing facts or law that are favorable to the appellant. Rather, an appellant’s brief should also address any warts in the appellant’s case. By bringing the warts to the court’s attention and explaining them, an appellant can make the court’s first impression of the warts as harmless as possible. If the appellant does not do so, the appellant gives the appellee an opportunity to influence the court’s first impression of the warts. Additionally, by not mentioning the warts in her appellant’s brief, an appellant can damage her credibility with the court.
Justice Brown noted that the court routinely denies oral argument even when it has been requested by both sides. She advised that cases of first impression and cases involving a split in authority are likely to be granted oral argument. So, if applicable, an attorney wanting oral argument should point out in her brief that the case falls into one of these two categories.
The justices all seemed to share the same pet peeve about oral argument. Specifically, every oral argument begins with the presiding judge stating that the court has read all of the briefs filed in the case. But some lawyers nevertheless insist upon reciting the background of the case. An attorney who does so is effectively telling the justices that she doesn’t believe that they have, in fact, really read the briefs. Calling a judge a liar is not a good way to start an oral argument. Instead, an attorney should consider beginning her oral argument by stating two or three issues that she would like to discuss.
Justice Whitehill advised that appellate justices at oral argument, much like jurors at trial, are quite good at perceiving when a lawyer does not sincerely believe in a contention she is making. So, if an attorney doesn’t truly believe in a contention, she shouldn’t make that contention.
Justice Schenck suggested that, before filing a motion for en banc consideration of a panel’s decision, attorneys first read the applicable rule. Specifically, Texas Rule of Appellate Procedure 41.2(b) provides that en banc consideration “should not be ordered [1] unless necessary to secure or maintain uniformity of the court’s decisions or [2] unless extraordinary circumstances require en banc consideration.” Justice Schenck emphasized that a panel making the wrong decision is simply not a basis for en banc consideration. So, if an attorney wishes to secure en banc consideration, the attorney should emphasize one or both of the situations in which the rules permit en banc consideration. Merely arguing that the panel was wrong is highly unlikely to be effective.