Peter Smythe, P.C.

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.

You might also like:

• The Real Costs of an Appeal: Preparation
• The Impor­tance of the Appe­llate Brief
• An In-​House and Outside Coun­sel Survey
• Wri­ting an Effec­tive Appe­llate Brief
• Depor­ta­tion Advice is Cons­ti­tu­tio­nally Required