The February 2010 Texas Bar Journal has announced the results of a statewide judicial survey conducted by the State Bar Appellate Section. The Journal gives appellate lawyers some friendly on appellate practice in Texas. Appeals are rarely won or lost at oral argument. Ninety percent of the justices reported that oral argument significantly changes their view of a case less than one-quarter of the time.
At oral argument, give direct answers. Seventy-six percent of the justices reported that counsel regularly fail to give direct answers at oral argument. The justices also reported that counsel regularly give emotional or fact-based "jury arguments" instead of proper appellate arguments (57 percent), adhere to a planned presentation instead of addressing questions from the panel (49 percent), and are unable to discuss the practical consequences of a possible decision (41 percent).
Appellate judges are accustomed to hearing oral argument from appellate specialists. By a margin of more than three to one, the justices prefer to hear argument from an appellate lawyer, provided that he or she knows the record well.
Several types of unprofessional conduct are on the rise. Forty-six percent of the justices reported that counsel are increasingly mischaracterizing or misstating the record or the law. Forty-five percent said that counsel are increasingly raising issues that clearly lack merit. Forty-three percent said that counsel are increasingly stating the facts in a manner that is inconsistent with the standard of review.
The survey really didn't break any new ground. The underlying thread is that appeals should be left to the appellate guys — lawyers who are comfortable with the standards of review and appellate argument.