No. 1: Ignoring Record Preservation at the Motion Stage

The summary judgment motion usually presents a mountain of a problem for the busy trial lawyer. The motion is often filed towards the latter half of the discovery period and the trial lawyer must draft a response in addition to his other duties of interviewing witnesses, taking depositions, attending mediations, and all of the various things that go in to preparing a case for trial. The appellate court is the last thing on his mind. But it shouldn’t be.

If he fails to any objections in his response to the movant’s motion or evidence, on appeal he’ll only be allowed to argue that the grounds presented for summary judgment are insufficient as a matter of law to support the summary judgment. Roadside Stations v. 7HBF, Ltd., 904 S.W.2d 927, 932 (Tex. App. – Fort Worth 1995, no writ). Consequently, he must not only file a sufficient response, he must objectively comb through the movant’s motion for any possible objections. Do the affidavits contain facts that would otherwise be admissible at a conventional trial? Has the movant adequately and accurately referenced materials that are already on file with the court? Is the evidence based on hearsay?

If there is objectionable material in the motion, the trial lawyer should do all he can to preserve his objections on the record and this is where many lawyers fail. His objections to formal deficiencies in the summary judgment proof should be in writing or he risks waiver on appeal (substantive deficiencies can be raised for the first time on appeal). And he should ask the court to make written rulings on the objections. In seven courts of appeal in Texas, if he doesn’t secure a written ruling on his objections, they are considered waived. See e.g., Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 206-07 (Tex. App. – Dallas 2005, no pet.).

No. 2: Failing to Focus on Motions in Limine

Generally, trial lawyers don’t put much stock in motions in limine. They are usually the last thing drafted before trial and are, more often than not, a cut-and-paste job from a form book or another lawyer’s form (from a different form book).

Motions in limine are excellent ways to preserve issues for appeal. Instead of using a boilerplate form with way too many issues, the trial lawyer should focus on the few issues that might turn the tide of the trial. A good motion in limine advises the court of the relevant case law regarding the evidentiary issue, is specific, is in writing, and requires the court to make a decision.

No. 3: Failing to Object (Waiving Error in Appellate Parlance)

Well, that’s a pretty good argument, but it wasn’t preserved by objection. Therefore it’s waived.

The classic trial lawyer error is failing to object, especially when evidence is introduced. Many lawyers do not like to object during trial because they believe that it turns the jury against them. From my own experience, that belief is misguided. Many jurors actually expect lawyers to object (they see it on TV all the time) and they understand that it is all part of the job. If a trial lawyer is squeamish about objections, he should address the issue in voir dire (I have in my own trials).

No. 4: Not Devoting Enough Time to the Jury Instructions

An erroneous jury instruction is one of the best issues to take up on appeal because the review is de novo. Though record preservation issues abound at this stage of the trial, trial lawyers not on top of their game often fail to preserve error in order to get along with the trial court.

The common scenario is that at the pre-trial stage, neither side’s jury instructions are complete and they are often completed after the jury has gone home for the day. Arguments about the charge with the judge may not take place until the tail end of the trial and they are often off the record. The judge may make his own changes to the charge which makes it awkward for the complaining party to object. Then, when the parties do make a record of objections, the judge says something like, “It looks like all of the changes we have discussed to the jury instructions that you prepared have been made,” and the parties acquiesce. The problem with this scenario is that no error has been preserved; a party can’t claim error in the court’s failure to give a particular instruction if the party didn’t request it.

Instructions should be filed early and the final set of instructions should clearly delineate who submitted the instruction, its disposition (given, refused, modified), and any specific modifications. Objections should be made on the record. And if the trial lawyer is squeamish about offending the court with his objections, he should hire an appellate lawyer to come in and do the objections for him.

No. 5: Inviting Error

A party can’t complain of an error that he created or that he acquiesced to. One prime example of invited error is a party receiving the benefits of a judgment that the party plans to appeal. See Newman v. Link, 889 S.W.2d 288 (Tex. 1994).

No. 6: Accepting the Benefits of a Judgment

An appealing party can lose his right to appeal by accepting the benefits of the trial court’s judgment. For instance, if a party chooses to pay a judgment instead of posting a supersedeas bond, that party might have given up a challenge to the judgment. See Hanna v. Godwin, 876 S.W.2d 454, 457 (Tex. App. – El Paso 1994, no writ). A party likewise loses his right to appeal if he decides to pocket the judgment while his appeal is pending. Newman v. Link, 889 S.W.2d 288, 289 (Tex. 1994)

The Jury Shuffle

After a venirepanel is assigned to the trial court, a party may demand a jury shuffle before voir dire begins. Tex.R.Civ.P. 223. Only one shuffle is allowed in each case. Before voir dire means before any question – oral or written – is presented to any venirepanel member. If the parties have sent out a jury questionnaire, it’s probably too late to ask for a shuffle, but there’s no question that they can’t once the questionnaires come back.

Rehabilitation

The law in Texas used to be that once a veniremember demonstrated bias, he was dismissed. That is not the law in Texas anymore. In Cortez-HCCI-San Antonio, Inc., 159 S.W.3d 87, 92-94 (Tex. 2005), the Texas Supreme Court held that veniremembers can be rehabilitated. “[T]he relevant inquiry is not where jurors start but where they are likely to end”; an initial leaning is not a basis for disqualification if it represents skepticism rather than unshakeable conviction.

Preserving “For Cause” Challenges

In Cortez, the Texas Supreme Court also clarified the procedure necessary to preserve a challenge for cause:

1. When the court overrules your challenge for cause, you must use a peremptory challenge.
2. Exhaust all your remaining peremptory challenges.
3. Explain on the record that you would have struck juror number so-and-so if did not have to exercise a peremptory strike on the one you challenged for cause.

You aren’t required to explain why you would have used your last peremptory, but you preserve error only when you have exhausted all of your peremptories and an objectionable venireperson remains on the panel.

Beware of Dual Motions for Summary Judgment

Under the Texas Rules of Civil Procedure, an opposing party can move for traditional summary judgment or a no-evidence motion for summary judgment. For sometime the courts of appeal said that you can file one, but not the other. The Texas Supreme Court put that thinking to bed by holding in Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004) that appellate courts can’t disregard “no evidence” grounds on the basis that evidence is attached to a traditional summary judgment motion. So if any motion for summary judgment asserts “no evidence” grounds, the non-movant had better respond.

Be Careful Not to Invite Error after a Loss

A party can’t urge the trial court to enter a judgment on the jury’s verdict and then complain about the verdict on appeal. Litton Indus. Prods. Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984). If you lose the trial, but need to have the trial court enter a judgment to start the appellate process, be sure to reserve your rights by submitting a proposed judgment as approved to form only. Plaintiffs’ counsel in First Nat’l Bank v. Fotjik, 775 S.W.2d 632, 633 (Tex. 1989) preserved error by submitting a proposed judgment, but qualifying the submission as to form only:

While Plaintiffs disagree with the findings of the jury and feel there is a fatal defect which will support a new trial, in the event the Court is not inclined to grant a new trial prior to entry of judgment, Plaintiffs pray the Court enter the following judgment. Plaintiffs agree only as to the form of the judgment but disagree and should not be construed as concurring with the content and result.

Calculating Judgment Interest

Section 304 of the Texas Finance Code governs judgment interest. For a breach of contract case, you either use the interest specified in the contract or the formula cited in Tex. Fin. Code § 304.002. In non-contract cases, section 304.003 governs and gives you a formula. Section 304.003(b) states that the consumer credit commissioner will basically tell you what the postjudgment rate to be applied is. The Office of Consumer Credit Commissioner can be accessed here and the judgment rate for the current month here. Post-judgment interest is compounded annually. Prejudgment interest is calculated at the same rate, but is simple and not compounded annually.

Mandamus

There is no official deadline for filing a writ of mandamus, but there are a few courts in Texas that will penalize a party solely for undue delay. In the past, mandamus wasn’t available without a written order. With a change in the appellate rules, mandamus is now possible with an oral ruling that is clear from the record. In re Bledsoe, 41 S.W.3d 807, 811 (Tex. App. – Fort Worth 2001, orig. proceeding). Mandamus involves “extraordinary” circumstances so it is wise to hire appellate counsel to pursue mandamus while the trial docket continues on.

I used to have an office downtown. It was just a couple of blocks from the courthouse, and right around the corner from the touristy part of downtown. Although the landlord called it pristine real estate, my office overlooked a trash-filled parking lot filled with weeds sprouting out of the cement and a deserted building with graffiti all over it. Parking wasn’t a problem because I won a lottery on a sliver of a parking space underneath the building. The other tenants called me lucky, but I wasn’t so sure. The space cost me more than my car insurance each month.

The hard thing about that office was the overhead costs every month. The newspapers talk about the move of businesses to the suburbs, but my landlord apparently didn’t read newspapers. Along with the rent, which was high, I had to pay my portion of taxes and expenses for common areas, and the parking as I mentioned. And then there was food; you didn’t feel like you could bring a lunch sack every day. And the clothes—suits and shoes and ties and whatnot. When you added it all up, most of what a client paid in fees was just to keep up appearance.

A Virtual Office? Are You Kidding Me?

A few years ago, I had to complete some CLE courses so I decided to head to the state bar convention. I went to a prayer breakfast one morning and happened to sit next to a lawyer who told me he had been practicing out of his house for over eight years. Like anybody else, my first impression was, “Yeah and your biggest client is probably your brother-in-law.” Boy, was I wrong. He rattled off a list of his clients and you would’ve thought that he was a name partner in some white-shoe firm.

I went to the CLE classes after that breakfast, but I couldn’t get that guy’s practice out of my head. Could you really have a substantive law practice and good clients and run it all from a virtual office? The more I thought about it, the more I couldn’t find any reasons why it couldn’t be done. I decided to try it out. I gave four weeks and if it didn’t work, I’d renew my lease downtown.

An Electronic Practice

The four weeks came and went and I never went back to the old way of doing things. I told my suite mates that I was moving out; I was going to practice law in the 21st century. Today I run my practice on an iMac, iPad, and iPhone. That’s it and that’s all I need. I receive virtually all of my court filings, discovery, and correspondence electronically. If some old-school lawyer sends me correspondence on paper, the first thing I do is scan it into the iMac. My whole practice is on the iMac and I compose all my letters, briefs, and memos on it. And now I don’t even print them out when I’m finished; I file them electronically with the courts.

The iPad has been a godsend and has provided me even more freedom from the stereotypical office. In the old days, just after I graduated from law school, I had to spend countless hours in the law library downtown to do my legal research. After a couple of years of wasting my life down there, I signed on to Lexis and was able to do it all online. Though that was much better, it still tied me down to a physical office. With my iPad, I can do all my research on the run. Whenever I have a big research project, like an appellate brief, due, I stick it in a backpack and head off wherever my heart may lead. I usually hit one of my favorite coffee shops and spend hours researching cases while babysitting a latte. This has meant a lot to my practice. My cases usually involve difficult legal issues or fact patterns, and the change of atmosphere helps to get my creative juices flowing. I’ve done some of my best legal work sitting next to fellow coffee drinkers who were playing board games. Frankly, I don’t remember a single “Aha!” moment in the law library.

My iPhone has also upped the practice game. I had several telephone lines in my office downtown. A couple were voice lines and at least one was dedicated for faxes. If a court, lawyer, or client sent me an 11th hour fax, I’d have to stop whatever I was doing, hop in the car, and hightail it downtown to read it. Sometimes that’d happen two or three times in one day. If a client called and a legal assistant or colleague took a message, I wouldn’t see it until the next day or even several days later if I was in trial. With my iPhone, all my faxes and calls come right into my left pants’ pocket. I can riff off responses without even getting out of my chair.

All of this has had a dramatic effect on billing. Since my overhead is close to nil, I’ve been able to lower my billing rates. And that means that my clients get a lot more lawyer bang for the buck. Just the other day I was talking to an old law school friend of mine and his billing rates are more than twice mine. Is he twice the better lawyer? I don’t think so. We both graduated with honors from the same law school and both were on law review. The only real difference between us is that he has a lot of overhead that he needs to pay for and I don’t.

Clients Still Love Stereotypes

A lawyer’s worth is not wrapped up in fancy offices, suits or shoes. It’s the research, knowledge, experience, and good ‘ole hard thinking that he brings to bear on the case that sets his worth. But some clients still don’t realize this. It’s going to take some time for the general public to see that a lawyer with a virtual, electronic office can be just as smart and good as his counterpart downtown. The public sees this with tech specialists and writers, but it still clings to wingtips when it comes to lawyers. It might take an O.J. case—a high-profile case that’s won by a lawyer with an iPad—but it’s just a matter of time before coffee shops everywhere are filled with lawyers, Lexis, and iPads.

I was watching the news the other day and one of the reporters questioned an appellate expert about an ongoing trial. As David Finfrock was telling us just how long this heat wave was going to last, I looked up the expert on Google. The reporter was right; this guy was one of the best in the state. I did some rummaging around and found some of his appellate briefs. Here is a statement of facts from one of his latest appeals.

Statement of Facts

The government filed written pre-trial notice that it would introduce evidence of Appellant’s 19__ prior felony conviction in Tarrant County, Texas for credit card abuse pursuant to Fed.R.Evid. 404(b), because Appellant “has indicated, at his initial appearance” that “‘the victim in this case stole my identity.’ his intent and knowledge of the crime is certainly at issue in this case.”

Appellant objected on the grounds that the 1989 prior felony conviction was too remote or sufficiently similar to the charge offense to have any probative value and that the prior conviction was also unduly prejudicial. The district court overruled Appellant’s objections, finding that his plea of not guilty placed his intent at issue, that the prior conviction was similar enough to the charged offense to be relevant to his state of mind, and that its probative value outweighed its prejudicial effect. The district court gave the jury a limiting instruction when the prior conviction was admitted, and in its charge to the jury.

In a written stipulation contained in government’s exhibit 8, the parties agreed that Appellant had pled guilty to the felony of credit card abuse on February 28, 19__ in Tarrant County, Texas. At the close of the evidence, the district court overruled Appellant’s request that jurors be instructed not to consider his 19__ prior felony conviction for credit card abuse for any purpose. In final argument, the government alluded to Appellant’s prior conviction and urged jurors to consider it in finding him guilty.

Frankly, I think it could stand some improvement. The sentences are long and much of the language is redundant. (And, no, there aren’t any typos.) Here’s my quick rewrite:

The government filed notice that it wanted to introduce Smith’s 19__ credit card abuse conviction at trial. It said that he had put it at issue because he said at his initial appearance that the victim had stolen his identity. This, the government said, provided the predicate for a 404(b) notice because it demonstrated intent and knowledge of the crime.

Smith objected. He argued that the 20-year-old conviction was too remote in time and wasn’t sufficiently similar to the charges of bank theft and aggravated identity theft. Failing those, argued that the conviction was unduly prejudicial.

The trial court overruled the objection. The court found that his not-guilty plea put his intent at issue, that it was sufficiently similar to the present charges, and it wasn’t unduly prejudicial. It did, however, give the jurors a limiting instruction. In final argument, the government alluded to the conviction and urged the jurors to consider it to find Smith guilty.

Things to keep in mind when writing a statement of facts:

• Short sentences are better than longer sentences.
• Use the client’s name and not his legal moniker.
• Keep a check on redundancy.
• Subject-verb construction enhances readability.

The net appears to be catching up to the needs of professional (and amateur) photographers. Google has just rolled out Search by Image, a search engine that allows users to search for images. How does this help photographers? It appears that Google mixes in an image’s metadata into the search. So, a photographer who’s encrypted his name into his images should be able to find any unauthorized web uses of it if the infringer hasn’t gone to the trouble of wiping the metadata clean. Pretty nifty.

“Very” is the most useless word in the English language and can always come out. More than useless, it is treacherous because it invariably weakens what it is intended to strengthen. For example, would you rather hear the mincing shallowness of “I love you very much” or the heart-slamming intensity of “I love you”?

–Florence King

Whether the charges are dismissed or Strauss-Kahn has to face trial, the story today shows how harmful a rush to judgment can be. Strauss-Kahn was the president of the International Monetary Fund and a leading contender for French president. He resigned his IMF post after his arrest, presumably because of the all the pre-trial publicity. It appears that he’ll never be elected for French president or any other significant office.

Go to the L.A. Times’s story here.

An employee of the radio station scanned Murphy’s image from a magazine article and posted it to the station’s website, and to another website, myspacetv.com. The scan cropped off the magazine’s title tag and Murphy’s gutter credit. The station’s site invited visitors to alter the image and submit their edits to the station. The station posted 26 edits, though it never received Murphy’s permission to republish the image.

Murphy found out about this and demanded that the infringement cease. The DJs got on the air and suggested that no one should do business with him because he was untrustworthy. They also implied that he was a homosexual, which wasn’t true. Murphy sued.

DCMA Claim

Murphy argued that, by reproducing the image on two websites without the gutter credit, the station violated the Digital Millennium Copyright Act. The court recognized the most well-known provision of the DMCA, section 1201, which grants a cause of action to copyright owners for the “circumvent[ion of] a technological measure that effectively controls access to a work,” but said that Murphy’s claim involved the lesser known section 1202. That section deals with “copyright management information” or CMI. According to Murphy, by posting the image on two websites without the gutter credit which was in the magazine, the station “remove[d] or alter[ed]” the copyright management information and “distribute[d]” a work knowing its CMI had been removed or altered in violation of the act.

The court agreed, holding that the plain language of the act protected against the knowing removal of the CMI, here the gutter credit.

What is helpful for photographers is the court’s statutory construction to the section. It held that the section isn’t restricted to the context of “automated copyright protection or management systems,” as the station had argued. Rather, a cause of action potentially lies whenever the types of information listed under the section and “conveyed in connection with copies…of a work…including the digital form” is falsified or removed, regardless of the form in which the information is conveyed. The information includes

• The title and other information identifying the work, including the information set forth on a notice of copyright.
• The name of, and other identifying information about, the author of a work.
• The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
• With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
• With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
• Terms and conditions for use of the work.
• Identifying numbers or symbols referring to such information or links to such information.
• Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.

17 U.S.C. § 1202(c).

A copy of the opinion may be had here: Murphy v. Millennium Radio Group.

Co-defendant's Appellate Brief – Click to enlarge

Co-defendant's brief reformatted – Click to enlarge

Bryan Garner is right when he says that clients hire lawyers to persuade. Sometimes I think that we forget that. Recently, I was appointed to represent one of two defendants on an appeal in a federal criminal case. The first page is a page from the co-defendant’s counsel’s brief. Without reading a word, you can see how his lack of care in formatting his work renders the brief uninteresting and unpersuasive (who’d want to read 40 to 50 pages like this?).

What are the problems? First is his top paragraph, which happens to introduce a new point of error. He’s not only capitalized everything in the paragraph, he’s justified it on the right, and he’s failed to set it off from the rest of the page. Second, he cites the sentencing guidelines, but he doesn’t set that block quotation from the rest of the text either.

It’s also justified to the right which gives it that boilerplate look (who reads boilerplate?). Third, he’s capitalized things he shouldn’t have. And, lastly, he’s used Times Roman—a real no-no.

Laying aside questions of substance and block quotations, I reformatted the page with the judges in mind. Just a few formatting tricks makes a huge difference, don’t they? Which one do you think a judge would be more interested in reading? Formatting, believe it or not, is extremely important in good advocacy.

Discovery

Please produce a signed copy of any agreement/contract/lease between Plaintiff and Defendant(s) regarding your lease for the premises located at 803 SW Military Drive, Suite 116, San Antonio, Texas.

RESPONSE:

Pleadings

The acts and omissions of the Defendants, as complained of herein, constitute misappropriate [sic] of trade secrets and violations of Section 31.05 of the Texas Penal Code and Section 134 of the Texas Civil Practice and Remedies Code.

Prayer

D&M have judgment against the Defendants for actual damages in an amount within the jurisdictional limits of the Court; D&M have judgment against the Defendants in an amount to be determined by the trier of fact;

Motion to Dismiss

That the Defendant in this action filed Motion to Dismiss contending this matter should be dismissed alleging Plaintiffs failed to exhaust administrative remedies before the Florida Commission on Human Relations.

Motion to Remand

Based on the facts and controlling authorities in this Circuit, Defendant cannot have had any good faith belief that it was a corporation or that removal was proper. Accordingly, Plaintiff moves for an award of its attorneys’ fees and costs.

++The style rules regarding capitalization are straightforward: neither plaintiff or defendant is to be capitalized in a sentence. Thus, Plaintiff should be written as plaintiff and Defendant as defendant unless some other style rule applies. This is also true when plaintiff or defendant is combined with the proper name of a party, e.g., defendant Smith (not Defendant Smith). Documents, too, shouldn’t be capitalized unless one is referring to a specific document. So the excerpt of the motion to dismiss cited above should have been written, “That the defendant in this action filed a motion to dismiss contending this matter should be dismissed alleging plaintiffs failed to exhaust administrative remedies before the Florida Commission on Human Relations.”
++Another question that these excerpts raise is why lawyers so love to dehumanize their clients and other parties with legal labels. You never see this in articles, journals, novels, or any other kind of writing. So why do lawyers do it with their motions and appellate briefs? Why not dignify your client by using his real name? Here is a factual scenario excerpt for an appellate brief using legal labels.

The defendant, a meth addict in Fort Worth, also sold the drug to finance his habit. The defendant would drive around town with cellphones and cash, in an old Lincoln Town car outfitted with a secret compartment, doing buys with a multitude of dealers. Defendant buy his meth in bulk—all cash—a pound or two at a time, hide it in his Lincoln’s compartment, and then sell off pieces to his own customers. Financing his addiction this way gave him two things: a hefty profit ($300 an ounce) and the independence to find the best deals in the marketplace.

Sometime in 2008, a confidential informant named “Marty,” introduced the defendant to the co-defendant. The co-defendant was the leader of a family-run drug-trafficking organization that distributed meth in and around Fort Worth. The organization was made up of at least five members, four of which were family. The confidential informant told the co-defendant that defendant was looking to buy some methamphetamine. The confidential source didn’t tell the co-defendant that the defendant was looking to join the organization.

This is how we actually drafted it:

David Vaught, a meth addict in Fort Worth, also sold the drug to finance his habit. He’d drive around town with cellphones and cash, in an old Lincoln Town car outfitted with a secret compartment, doing buys with a multitude of dealers. He’d buy his meth in bulk—all cash—a pound or two at a time, hide it in his Lincoln’s compartment, and then sell off pieces to his own customers. Financing his addiction this way gave him two things: a hefty profit ($300 an ounce) and the independence to find the best deals in the marketplace.

Sometime in 2008, a confidential informant named “Marty,” introduced Vaught to Eric Riojas. Riojas was the leader of a family-run drug-trafficking organization that distributed meth in and around Fort Worth. The organization was made up of at least five members, four of which were family. Marty told Riojas that Vaught was looking to buy some methamphetamine. He didn’t tell him that Vaught was looking to join the organization.

++Any time that a lawyer can cut out the legal labels, he should. It makes for better reading and is much more persuasive in any case.

Now he had not run far from his own door, but his wife and children perceiving it, began crying after him to return, but the man put his fingers in his ears, and ran on, crying, Life! Life! eternal life. —Paul Bunyan, The Pilgrim’s Progress

Last week I saw a woman flayed, and you will hardly believe how much it altered her appearance for the worse. —Jonathan Swift, A Tale of the Tub

To such a tremulous wisp constantly re-forming itself on the stream, to a single sharp impression, with a sense in it, a relic more or less fleeting, or such moments gone by, what is real in our lives fines itself down. —Walter Pater, The Renaissance

And I shall go on talking in a low voice while the sea sounds in the distance and overhead the great black flood of wind polishes the bright stars. —Ford Maddox Ford, The Good Soldier

When I first began writing I felt that writing should go on I still do feel that it should go on but when I first began writing I was completely possessed by the necessity that writing should go on and if writing should go on what had commas and semi-colons to do with it what had commas to do with it what had periods to do with it what had small letters and capitals to do with writing going on which was at the time the most profound need I had in connection with writing. —Gertrude Stein, Lectures in America

Since Fish’s book has come out, others have jumped in with their own favorites. Here are a few of the nominations:

His soul swooned slowly as he heard the snow falling faintly through the universe and faintly falling, like the descent of their last end, upon all the living and the dead. —James Joyce, The Dead

It is a far, far better thing that I do, than I have ever done; it is a far, bar better rest that I go to than I have ever known. —Charles Dickens, A Tale of Two Cities

Clocks slay time. Time is dead as long as it is being clicked off by little wheels; only when the clock stops does time come to life. —William Faulkner

One had to forget—because one could not live with the thought that this graceful, fragile, tender young woman with those eyes, that smile, those gardens and snows in the background, had been brought in a cattle car to an extermination camp and killed by an injection of phenol into the heart, into the gentle heart one had heard beating under one’s lips in the dusk of the past. —Vladimir Nabokov, Pnin

Then Amnon hated her with very great hatred; so that the hatred with which he hated her was greater than the love with which he had loved her. —2 Samuel 13.15, RSV

The only people for me are the mad ones, the one who are mad to live, mad to talk, mad to be saved, desirous of everything at the same time, the ones who never yawn or say a commonplace thing, but burn, burn, burn, like fabulous yellow roman candles exploding like spiders across the stars and in the middle you see the blue centerlight pop and everybody goes “Awww!” —Jack Keourac, On the Road

We will continue to go to big firms for the lawyers they have who are experts in subject matter, world-class thought leaders and the best litigators and regulatory lawyers around the world — and we will pay a lot of money for those lawyers.

Read the article here.

++In late 2004, he suffered a fall that caused a slight cervical fracture. Again he was admitted to Covenant, but Covenant decided to transfer him to Southwest Hospital. Evidence at trial showed that Covenant documented Perea’s allergy to Ativan and that the medical personnel at Southwest were well aware of it. Despite the documentation, two nurses administered Ativan to Perea. He lapsed into a ventilator-assisted coma and Southwest transferred him back to Covenant. Seeing no changes in his condition after a week, his family asked that he be removed from the ventilator and he expired.

++The family sued Southwest (THI of Texas at Lubbock) and its pharmacy for wrongful death and survival damages. A jury found the defendants negligent and awarded a total of $1,696,595.50 against THI. It appealed.

++In its appeal, THI asserted:

• The trial court abused its discretion by using a broad-form jury instruction on negligence and proximate cause cause when the family had sought survival and wrongful death damages.
• The trial court abused its discretion by granting the family a trial amendment for negligent credentialing because it was prejudicial to THI’s defense.
• The family’s evidence was legally and factually insufficient to support negligent credentialing and factually insufficient to support a negligence claim.
• The family’s evidence was legally and factually insufficient to support a gross negligent claim.
• The trial court abused its discretion by excluding evidence that THI had conducted an investigation of Jacob’s death.
• The trial court abused its discretion as a matter of law by failing to apply statutory damage caps in sections 41.008(b) and 74.301(b) of the Texas Civil Practice and Remedies Code.

Jury Instructions

THI had objected to the Texas Pattern Jury instruction that asked about it proximately causing the injury in question. THI wanted the instruction to read: proximately causing the death in question. It argued that death should have been substituted for injury because the “only evidence of injury is death.”

The court held that the trial court didn’t abuse its discretion by leaving injury in the charge. It explained that the family had also brought a survival action where injury is the proper term and an added instruction might have confused the jury. It also said that THI had failed to offer any evidence that the use of injury over death caused the rendition of an improper judgment.

Trial Amendment

During their case-in-chief, the family confronted a nurse supervisor with a past employment credentialing issue without any objection from THI or a request for continuance of the trial. In overruling THI’s issue, the court held that it waived any error because it didn’t object at trial or ask for a continuance of the proceedings.

Legal Sufficiency Challenge – Negligent Credentialing

Leonard Espinoza was the nurse supervisor who gave the order to his supervisee to administer Ativan to Jacob. He had done that before. Earlier in his career, he administered Ativan to a patient without authorization and he was suspended for it.

The court held, given this evidence, there was more than a scintilla of evidence (proper standard of review) supporting the family’s negligent credentialing cause of action. The court said that the jury could have reasonably inferred that THI hired Espinoza knowing he was on probation due to disciplinary proceedings in another state, for conduct that reasonably endangered the health and safety of patients entrusted to his care. The court also held that, since Espinoza’s conduct in the case was identical to his previous wrongful conduct, THI’s issue was easily overruled.

Legal and Factual Sufficiency Challenges

THI asserted that the evidence was factually insufficient to support a finding of negligence because the credentials of its expert were superior to the family’s expert’s and so its experts’ opinions were entitled to more weight. The court observed that THI hadn’t objected to the family’s expert testimony at trial, and his opinion fell within the province of the jury. Significantly (at least for Texas plaintiffs’ lawyers), his testimony provided a traceable chain of causation from Jacob’s condition to the event.

The court also found the family’s gross negligence claims legally sufficient. The court said that virtually all of the testifying health professionals agreed that giving a patient Ativan without a doctor’s permission was extremely reckless and could cause severe injury. Given that Espinoza testified to the same thing, and had given Ativan to a previous patient without authorization, the court didn’t have any problem finding that he was actually aware of the extreme risk that he was taking in instructing his supervisee to give Jacob the drug. The court also found corporate liability for gross negligence, finding that Southwest had consciously disregarded the danger Espinoza exposed to patients by allowing him to administer medications.

Damages

Finally, THI argued that the family’s damages should be modified to reflect the statutory caps. Specifically, it said:

• Section 41.008(b) should be applied to limit  exemplary damages.
• Section 74.301(b) should be applied to limit non-economic damages (capped at $250,000 for each claimant).
• Section 74.303 should be applied to limit the family’s overall recovery on a health care liability claim.

Regarding section 74.303, the court found that the family should be considered a single claimant. Consequently, Jacob’s estate and his four sons were entitled to recover no more than $1,737,272.00 (based on CPI), excluding necessary medical, hospital, and custodial care. Since the overall award didn’t exceed the cap, the trial court didn’t abuse its discretion.

As for § 74.301(b), the family argued that it shouldn’t apply if § 74.303 applied (two caps shouldn’t apply to one cause of action). The court disagreed and held that the Legislature intended that both caps apply. Applying the section, the court held that THI’s civil liability was limited to just $250,000 because the family comprised a single claimant.

And as for limitations for exemplary damages, the court overruled the family’s waiver argument. It held that the exemplary cap applied as a matter of law and that the trial court erred by not applying it. In applying § 41.008(b), the court said that the trial court should first apply the non-economic damages cap and then § 41.008(b).

Correction of Judgment

The jury had awarded the estate economic damages of $17,526.27 and non-economic damages of $40,000. It also awarded Jacob’s sons $100,000 apiece and exemplary damages of $1,250,000. The court couldn’t calculate the exact amount of the corrected judgment because a settling defendant’s payment (the pharmacy) had to be figured in. But a ballpark figure would bring the family’s $1.7 million verdict down to just over $700,000 (assuming section 41.008(b) is given its plain meaning).

And that’s what’s called Texas justice nowadays.

Read the case here: THI of Texas v. Perea.

Only in recent years have I come to understand the full importance of brevity and simplicity in legal writing. My wife worked as an appellate research attorney for years, and she has explained to me how in close cases, the simple, focused brief has a big advantage over the meandering, convoluted one. That might seem obvious, but it’s easy to lose sight of how, once you know your case thoroughly, you can subconsciously assume that the reader is right there with you as you move from one nuance to another. Quite often, you have lost the reader, and he/she is going to turn to your opponent for clarity.

Simplifying an appellate brief while maintaining its full persuasive force is very challenging, but doing it well is what separates the best appellate advocates from the rest of the pack. I don’t claim to have perfected this trick, but effective simplification is my goal.

Question is: How do you get this over to your next potential client?

Good Writing Takes Time. I have never spent less than thirty hours writing a brief. I may have been trial counsel. There may be only one issue. The transcript may be under 100 pages. The law may be clear. It takes me around thirty hours, including formatting and creation of the table of authorities and table of contents. It takes a lot longer when I’m new to the case, when the transcript is voluminous, when exhibits are dense, when the issues are many, and when the law is unclear.

Good writing takes time. Presumably it takes time to write good novels, good screenplays, and good musical compositions. Why should it take any less time to write good briefs? Briefs may be written in prose, but prose has its own rhythm and its own symmetry. Every fact should be perfectly supported by a citation to a specific page in the record, and it takes time to ensure perfect factual citation. Every legal principle should be supported by the best possible citations, and it takes me a lot of time to get this right.

If you scrimp on hours then your brief might get your point across, but it won’t sing. It will be read and understood, but it won’t read effortlessly. Your account of the facts and your explanation of the law will be noted, but perhaps more skeptically than necessary. —Andrew Schulman, Ten Tips for Writing a Great Appellate Brief

If you’d like to read the rest of Schulman’s tips, click here to go to his site.

++If you’re thinking of rethinking your law office environment, I encourage you to read David’s article. It’s a good read.

Check out the article here.

I asked him about the yings and the yangs of both and he said that he wished that he had made the move to the house sooner. He had a good group of clients (one pretty large bank) and he found out that after the first consultation, his clients didn’t need (or want) any more face-to-face meetings. In fact, they liked the fact that virtually all his conferences were done via email or conference call because that’s the way they all do business.

For the last several months, I’ve been investigating the pros and cons of moving my appellate practice to a home office. This lawyer showed me that it’s not only doable, but probably preferable. His overhead is considerably less than mine and he hasn’t had to dumb his practice down because he doesn’t write a rent check for an expensive office suite every month. In fact, it’s helped him to win more business: one of his clients opted to retain him for a litigation matter after comparing his hourly rate of $300 to the $900 per hour rate quoted by a downtown firm.

Note to self: begin investigation of home office in earnest.

He lifted up the rod and smote the waters of the river . . . and all the waters that were in the river were turned to blood. And the fish that were in the river died; and the river stank, and the Egyptians could not drink the water of the river; and there was blood throughout all the land of Egypt.

His lawyerized version:

The water was impacted by his rod, whereupon a polluting effect was achieved. The consequent toxification reduced the conditions necessary for the sustenance of the indigenous population of aquatic vertebrates below the level of viability. Olfactory discomfort standards were substantially exceeded, and potability declined. Social, economic, and political disorientation were experienced to an unprecedented degree.

Good thing that Moses wasn’t a lawyer; the Israelites would never have made it out of Egypt.

• Faulty capitalization of Order and Motion. The rule is to use lowercase when these words are used generically, and only capitalize them when they refer to a specific document.
• Faulty capitalization of Plaintiff, Defendant, and Court. The rule is to capitalize plaintiff and defendant when they are used as the names of the parties. And capitalize court when referring to the court in which the case is pending or the Supreme Court.
• Faulty punctuation of quoted material. Motions and briefs filed in American courts should follow the American rule: punctuation goes inside the quotes unless it is a question mark or exclamation point that is not part of the quote.
• Faulty use of ordinals. Spell out the ordinals of the courts, i.e., Fifth Court of Appeals. 5th belongs just in the case cites.

The judge’s work provides excellent insight as to what kind of impressions ordinary motions make on the ones deciding your client’s case.

Judge’s Marked-Up Motion

Hat tip to Ross Guberman of Legal Writing Pro.