of 22 /22
You Have a Verdict—Now What? Guidance on Perfecting and Pursuing a State Civil Appeal D. Todd Smith Smith Law Group, P.C. www.appealsplus.com St. Mary’s University School of Law Alumni CLE Webinar Series August 9, 2012 1

SMLAA Webinar Slidedeck

Embed Size (px)


The presentation seeks to educate trial lawyers on issues that arise following a jury verdict, including: formulating or opposing a final judgment from the verdict (including interest and other elements); calculating post-verdict deadlines; when the judgment is "final" for purposes of appeal vs. execution; superseding the judgment (what and for how long; options); preservation of error; perfecting appeal and getting the record; advising the client on realistic appellate expectations (timing, cost, and outcomes)—including what to prove up regarding appellate attorney's fees.

Text of SMLAA Webinar Slidedeck

Page 1: SMLAA Webinar Slidedeck


You Have a Verdict—Now What? Guidance on Perfecting and Pursuing

a State Civil Appeal

D. Todd SmithSmith Law Group, P.C.


St. Mary’s University School of LawAlumni CLE Webinar Series

August 9, 2012

Page 2: SMLAA Webinar Slidedeck



• You have obtained a jury verdict in state trial court

• What are the critical next steps?– Strategies for obtaining appellate attorney fees– Formulating and opposing a final judgment from the verdict– Post-verdict preservation of error– Enforcing and superseding the judgment– Initial steps toward taking an appeal

Page 3: SMLAA Webinar Slidedeck


First Step: Take Off the Trial Goggles

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

Page 4: SMLAA Webinar Slidedeck


Trial Goggles

“My trial lawyer said that all the hard work has already been done and we’re TOTALLY going to win the appeal.”

Page 5: SMLAA Webinar Slidedeck


Estimating Appellate Attorney Fees

• Start thinking about this long before trial

• Be sure and designate an expert to testify about appellate fees and prove them up at trial

• Don’t count on a “copy and paste” job– Most appeals are decided on briefs, so it’s a mistake to just re-

hash what you did in the trial court– Requires thinking about the facts and issues like an appellate

justice would

Page 6: SMLAA Webinar Slidedeck


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

• 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.– Texas Supreme Court proceedings, if any– Post-appeal activity

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

Page 7: SMLAA Webinar Slidedeck


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– Describe any relief awarded on the merits– Any attorney fees awarded—consider detailed breakdown– Pre-and post-judgment interest—a (boring) CLE talk unto itself– Costs– Language of finality and execution– Date and signature line for judge

Page 8: SMLAA Webinar Slidedeck


Post-Verdict Error Preservation

• Most errors are preserved during trial, but be aware of rules for post-verdict preservation

• In jury cases, must file a MNT 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

Page 9: SMLAA Webinar Slidedeck


Post-Verdict Error Preservation (cont’d)

• In jury cases, preserve legal sufficiency challenges by one of the following:– Motion for directed verdict– Motion for JNOV– Charge objection– Motion to disregard the jury’s answer to a fact issue– Motion for new trial specifically raising the complaint

• If a MNT is all you bring, a new trial is the most you’ll get

Page 10: SMLAA Webinar Slidedeck


Superseding and Enforcing the Judgment

• Methods– Bond or cash deposit– Written agreement– Alternate security as ordered by the court

• What must be included?– Compensatory damages awarded in the judgment– Interest for the estimated duration of the appeal– Costs awarded in the judgment

• Practice tip: Travis County District Clerk has a handy form available online (Google “travis county supersedeas xls”)

Page 11: SMLAA Webinar Slidedeck


Beware of the Shook/Fairways Split

• Shook v. Walden (3CA 2010)– Attorney fees are not “compensatory damages” that must be

superseded (at least not in breach-of-contract cases)– Analysis relied on certain definitions in HB4

• Fairways Offshore v. Patterson (1CA 2011)– Declined to follow Shook and held that attorney fees are

“compensatory damages” that must be superseded– Nothing in plain language of HB4 evidencing intent to change law

requiring security of fees or to exclude fees from common meaning of “compensatory damages”

• SCOTX has scheduled oral argument in a mandamus expected to resolve the split (In re Nalle Plastics)

Page 12: SMLAA Webinar Slidedeck


Other Supersedeas Issues

• Supersedeas caps– Post-HB4, amount of security must not exceed 50% of judgment

debtor’s net worth or $25M, whichever is less– A judgment debtor who files a net-worth affidavit and complies

with TRAP 24.2(c) gets a stay pending a potential contest– The rule makes it easier for judgment debtors to appeal

• Adjustment of supersedeas amount– Rules provide for deviation from standard formula upon a

showing of “substantial economic harm”– Trial court keeps jurisdiction to adjust amount and type of security– Court of appeals can review on motion

Page 13: SMLAA Webinar Slidedeck


Commencement & Perfection of Appeal

Page 14: SMLAA Webinar Slidedeck


Calculating the Deadline to Perfect Appeal

• Deadline runs from the date the 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)

Page 15: SMLAA Webinar Slidedeck


Know the Steps to Perfect Appeal

• Notice of Appeal (TRAP 25.1(c))– File in trial court only– Special language required for accelerated and restricted appeals– Consider if cross-appeal is necessary (vs. cross-issue)

• Filing fee: $175

Page 16: SMLAA Webinar Slidedeck


Other Initial Steps

• Docketing Statement– Was specific to each court’s website, but a new uniform version

is now available– Download and complete electronically– Must file “promptly” after NOA (TRAP 32; 3rd COA Local Practice

¶ 39)

• E-filing is now mandatory in several courts– Redaction rules—confidential information– Include email address with signature– Some courts require paper copies; others don’t– Read the local rules

Page 17: SMLAA Webinar Slidedeck


Other Initial Steps (cont’d)

• Request Clerk’s & Reporter’s Records– Written request, served on all parties– Make arrangements to pay– Specify contents—but don’t request unnecessary contents– Briefing deadline will run from date record is filed

Page 18: SMLAA Webinar Slidedeck


Advising the Client on Realistic Expectations

• Two key questions:– Should we appeal?– If so, which issues should we raise?

Page 19: SMLAA Webinar Slidedeck


Realistic Expectations (cont’d)

• Factors to consider:– What will the standard of review be?– What are our chances of success?– What risks will the client face?– What will the costs / expenses be?– What is the temperament of our potential panel on these issues?– What is the anticipated timing?– What impact will an appeal have on potential settlement?

Page 20: SMLAA Webinar Slidedeck


Helpful Resources

• Office of Court Administration website– Statistics for every court in the state– Dispositions and average times

• Reasons for Reversal– Breaks statistics down– By court and type of case

• An appellate lawyer!

Page 21: SMLAA Webinar Slidedeck


And Remember…

Page 22: SMLAA Webinar Slidedeck


You Have a Verdict—Now What? Guidance on Perfecting and Pursuing

a State Civil Appeal

D. Todd SmithSmith Law Group, P.C.


St. Mary’s University School of LawAlumni CLE Webinar Series

August 9, 2012