In this episode, hosts Todd Smith and Jody Sanders share their list of crowdsourced “pet issues” that appellate courts could address to make practitioners' lives easier. Their goals, Todd explains, are to both identify areas for improvement and also to give them an opportunity to flesh out those topics in later episodes. If you’re a practitioner with thoughts about everything from modernizing the outdated civil docketing statement to standardizing sealed record procedures to adding a cross-appeal rule, chances are that Todd and Jody have thoughts, too. Tune in as they break down issues and suggest possible solutions. “If any judges, rules committee people, anybody ever wants to come on and talk about these, please let us know,” Jody says. “We would love to have other perspectives on it.”

Connect and Learn More

☑️ Todd Smith | LinkedIn | X

☑️ Jody Sanders | LinkedIn | X

☑️ Texas Appellate Law Podcast on LinkedIn | X | Instagram

☑️ Texas Appellate Counsel PLLC

☑️ Kelly Hart & Hallman, LLP | LinkedIn

☑️ Subscribe Apple Podcasts | Spotify | Amazon Music | YouTube

Produced and Powered by LawPods

Sponsored by Court Surety Bond Agency and Proceed (formerly Counsel Press).

Welcome to the Texas

Appellate Law Podcast,

the show that takes you inside the

Texas and federal appellate systems.

Through conversations with judges, court

staff, top trial and appellate lawyers,

academics and innovators,

we provide practical insights to help

you become a more effective advocate.

Whether you're handling

appeals or preparing for trial,

you'll discover strategies to sharpen

your arguments, innovate your practice,

and stay ahead of the latest

developments. And now here are your hosts,

Todd Smith and Jody Sanders.

Produced and powered by LawPods.

Welcome back to the Texas Appellate

Law Podcast. I'm Todd Smith.

And I'm Jody Sanders.

So Jody and I are going to visit today

about a topic that we've publicized a

little on social media, and that

is, I guess to set the topic up,

maybe we should just recount the fact

that we spent a lot of time on this show

talking about ways that practitioners

can make the court's lives easier,

make it easier for the

judges to do their jobs.

And that's a valid topic of discussion

and certainly that's one that our judges

like to talk about. And I would

too if I were in their position,

but we thought we might flip the question

around and cover some topics that

we've come up with and that some of our

listeners have sent in about the things

that the courts can do.

The courts have the power to influence

or change that could make the appellate

practitioner's job easier

or better in some way.

And we've each come up with a list.

I have a list of probably half a

dozen pet issues or so, and Jody,

I know you've got at least

that many or about that many.

Not that we have grievances

per se with our court system.

It's just things that we've identified

that maybe could make our lives go a

little smoother.

Yeah,

this is not going to be our Festivus

episode where we're airing our grievances.

That exact thought and phrase entered

my brain when I first came up with this

topic because I was

jokingly wanting to title it

things the courts can do to improve the

experience of appellate practitioners or

something like that. And I guess that is

sort of the general idea, but we also,

like I said, we had some listener

suggestions that were really good,

and so we'll cover some of

those too as we have time now,

the fact that we've probably got

a list of, gosh, at least 20,

maybe it is a little like Festivus, I

think some folks kind of decided, Hey,

this is my chance to air it out

because of the size of the list,

we're not going to have a lot of

time to spend on any one topic,

but I think there's some things

in here that we can mention,

make a few comments on,

and then if there's any

discussion to be had between us,

we'll do that and then we can always

cover any one of these in more detail in a

later episode. But I think our

goal here was just to, for one,

just identify the areas in which the

court system could be potentially

improved for practitioners,

and I'll include clients within that

group as well. And then secondly,

give us an opportunity if we want to

later to flesh those topics out and spend

some more time talking about 'em.

So what I'm going to do is I'm going

to kick us off with one of my favorite

topics as far as things that could be

done to make the practitioner's life

better, and that is to revisit the whole

concept of a civil docketing statement.

In civil appeals, if you

practice appellate law in Texas,

you know that as the appellant

and sometimes as the appe,

the courts require you to

file a docketing statement,

which is these days a fillable PDF

form available for download on all the

intermediate courts of appeals websites.

I always found it a little odd that you

don't have to do one for amend damage,

whereas you do for an ordinary appeal.

I remember the days when these statements

were even less modern than they are

now that I think all the courts basically

had their own version at one point,

and about 10 or 12 years ago,

maybe a little bit longer,

there was this effort

to standardize the form,

which was a step in the right

direction. But it's still,

that much time has gone

by, and as we all know,

technology has evolved significantly.

And so just for context,

the real purpose that I always understood

of a docketing statement was just as

an administrative tool to help the

court make sure that it had all the

information that needed about the case.

So if you go through the

form that can be downloaded,

identifies all the lawyers,

identifies the court reporter,

the clerk asks them basic

questions about the case,

if you're going to file

an affidavit of indigency,

if you're going to supersede the

judgment, if you're going to,

or if there was a motion

or action extending the

timetable for appeal and that

sort of thing. And that's all fine and

good really because I do understand that

courts,

I think one of the things that happens

is that the clerks get these and do sort

of a jurisdictional check,

which ought to happen if the court sees

a problem with jurisdiction that ought

to be easily identified.

But the form itself in the age of

fillable forms online and the kinds

of tools that we have available

software wise, I'll just say it,

is horrifically outdated to have to go in.

And if it is in fact a fillable PDF,

you've got to deal with

formatting problems and what

if the text doesn't fit in

the space that you're allowed?

And there's a few things like that

that I think could be made easier.

I've already mentioned it, but I

think my idea on this is really,

this ought to be basically an

online fillable form. It is

administered through the

office of court administration.

I don't know that any of the justices

on any court or anybody on the Supreme

Court ever actually sees it. So

it seems to me that just the form,

if you will,

of the form is something

that if the courts are going

to continue to require it,

it ought to be updated

and pretty substantially.

And using some of the tools that are

it was the two thousands,

early to mid 2010s when this

form was updated the last time,

and it seemed like a big step forward

for it to be even a fillable PDF

as I remember.

Well, and for example,

you have to put in the identity of

all counsel upfront for both sides.

Then in the end you have to put the

identity of everyone that you serve in a

separate part of the form.

Then when you're setting up,

if you're the appellant for instance,

you have to put in all that information

on the e-filing system to be able to

serve them in a new appeal.

So that's now three times that you're

effectively putting in the same

information, which seems

kind of to your point,

couldn't we do it all online somewhere

where you only have to do it once?

Exactly, exactly. And we were e-filing

at the time this form was updated,

but I mean the e-filing system's

gotten better I think since then.

To your point about identifying

the parties that you're serving,

the rule has changed a couple of years

ago to remove the need to even serve

appellate court documents on parties.

And so maybe I'm a little bold,

but many times I won't list the names

of the parties that I'm serving.

And I'll note in the area where there's

a certificate of service that the

certificate of service is no

longer required under the rules.

That hasn't got us anywhere so far,

but I have not had much blow back

on that if any of all the times

I've filled out this form. I mean there

are some legitimate purposes it serves.

You would think part of

me wants to say, Hey,

can't they get this all from what's in

the trial courts file? A lot of it, yes.

And in the age of AI,

could you have a bot scrape the trial

courts file for all this information?

Not quite all of it, but the court

reporter is that sort of thing.

It won't say whether you've made

arrangements with the clerk or the court

reporter. You won't know without

a form or something like this,

whether there's a bond that's expected

to be filed or extraordinary relief,

it's going to be pursued.

It does have also the sections for

the courts that participate in this on

both the A DR mediation programs

of those courts and also the

state bar appellate

section pro bono program.

So those are worthwhile bits

of information to gather,

but there's nothing about this old

style PDF that wouldn't allow that

information to be gathered another way.

So I'm just going to make a call for OCA,

which I know there's somebody new at the

helm as far as the technology director

of OCA.

I'll have to bend that person's ear,

but I know in keeping with the

overall theme of this episode,

this is something that

getting some direction from

the courts themselves and not

just from the administrative

offices, the OCA technology folks,

they don't have a dog in the hunt.

The people that have a dog

in the hunt are the clerks,

the intermediate appellate

courts primarily in the lawyers.

And so I would love to see the

courts clerks and lawyers work

together to come up with another option

for gathering what needs to be gathered

administratively to help the

court process. Its appeals.

And so I'm just going to suggest that

that discussion started. Okay, so alright,

that's probably the closest to

festive this I'll get. We'll see,

but what do you got, Jay?

So one of mine has to do with sealed

records and it's not necessarily a

criticism of a court or

practitioners, it's more of just a,

I don't think people recognize the

impact of sealing documents and what that

creates on an appeal.

So the Fifth Circuit is

extremely narrow in terms of what

they permit to be sealed regardless

of what the district court did,

and they require district courts to go

through a pretty thorough analysis in

federal courts, state

courts aren't the same.

Certainly Rule 76 has specific

procedures that you have to go through,

but I think different

courts, different clerks,

different court reporters all handle

sealed evidence and camera evidence

differently.

So when you're coming to actually

preparing the record that creates issues,

then getting it to the court of appeals,

then being able to access it as the

party trying to access the right,

there's not really any standardization

and it just makes it more difficult I

think for everybody on each

side, practitioners, courts,

the people preparing the records. And

so I don't know if there's a way to sort

of streamline that process.

And then also this is just sort

of a caution for attorneys.

Certainly there are things

that need to be sealed,

there's no question about

that, but think carefully.

If you have a case that you think is going

to go up on appeal about how and what

you seal, are you sealing an entire

motion? Are you sealing pages?

Are you sealing exhibits? Are

you just going line by line?

There's reasons to do

each of those things,

but think carefully is all I'm going

to say because it really does create

headaches for every participant in

the system when you start doing it.

I want to say that the Supreme Court

Advisory Committee is looking at

trying to update Rule 76 A.

I don't know exactly what the scope of

that is and based on our conversation

with Rich Phillips,

I suppose I should say the Supreme Court

is looking at that and has asked Scac

to study it.

But that's a great point and certainly

would hope that that's part of what SC is

looking at in making any recommendations

on changing 76 A because you do have

the issue sometimes if somebody gets a

little overaggressive on what they think

should be sealed and we definitely need

the procedures have to do what they're

supposed to do, which is

to protect confidentiality,

but there's a balance in there somewhere

and we don't want them to be more than

wieldy than they need to be.

Absolutely.

Okay, that's a good point.

I'm going to resume a little bit of a

gripe about some things that I've seen

that the Supreme Court

of Texas in recent times,

I was super proud of our Supreme

Court when it became a pioneer in

broadcasting oral arguments

live the YouTube channel.

I was very proud of the court,

I was proud of St. Mary's,

my law school for helping the court get

that started and for many years that was

a great partnership between St.

Mary's and the Supreme Court and

that's continued. Thankfully.

I think that's one of the things that

really does make our lives better is I can

sit here in my office and watch if

there's a case I'm interested in the oral

argument in real time on my

computer and they're available

24 7. I can go back and look at other

arguments and I think just think that's a

tremendous benefit to lawyers and the

public just in being in favor of as much

transparency is reasonable for the court

because we've talked about on the show

before for the public to have

confidence in our courts,

transparency is one of the biggest tools

that the courts can use to help move

that along. And so not too long ago when

we were talking about the changes to

the petition for review system,

I went on a little rant about the

internal operating procedures paper no

longer being posted on

the court's website.

I still think that or an equivalent ought

to be there just for kind of the same

reason that you don't want to be perceived

as hiding the ball and that's not

what I think is happening

with the court specifically,

but if you're going to

have a paper like that,

and admittedly it needs to be updated

in light of the changes to the petition

process. And as I've also acknowledged,

the court did add some procedural notes

on the end of the order approving the

rule change that I think

are helpful, but boy,

what a tool that I paper was way

back in the day before January one

or when it was still posted on the

court's website because you could look at

that paper and kind of

figure out, all right,

when should I start looking for a

ruling on my petition for review based

on the way they explained the votes

and how that all fits in the court's

conference schedule. You can look at the

court's conference calendar online and

say, okay, my petition's been there

for X number of days or however long,

and you could kind of make a guesstimate

as to when you might really start

watching the orders closely. And I'm sure

all those rules are largely the same,

but we've heard that there's going to be

faster decisions made on petitions for

review now under the new rule.

And so it would be really nice if there

was one unified document that included

all the voting information,

the number of votes to take

certain actions of the court.

I think we can go and find that,

but having it all in one place

that's a click away is just super

helpful.

But that's really not what I wanted

to mention today specifically.

I will still call for the paper to

be updated and added to the website,

but what I wanted to mention today that's

in keeping with the two things that I

mentioned earlier is the Supreme

Court's former practice of in

advance of oral argument, like

the week of oral argument,

sending out emails with a list of the

cases being argued, case summaries,

who the lawyers were and

links to the docket. Yes,

that's all public information that can

be obtained from looking at the court's

website, but that was again,

one of the things that I thought

was just a tremendous tool.

I relied on that email just

like the Friday orders email,

even though I know orders

come out every Friday,

that Friday orders email would tell me,

Hey, I need to go look at these orders.

This was the same.

I mean if I was tracking a specific

case and already knew about it,

I could get that information

and know when the argument was,

but if maybe there was one that got

past me and I wanted to check out that

case,

check out the argument or it's one that

I just didn't know about and wasn't

tracking the issue in a specific case,

but it affects one of my other cases

and it just hadn't come to my attention

yet. That was a tool that I thought

was just extremely helpful. Now,

I'll give Adam Schneiderman credit

because I think Adam and I have had some

online conversations about this and

he writes his Substack page 14th and

Colorado, I believe is what it's called.

I think Adam has tried to

pick up the ball on this some,

and I don't mean to say to him

that he shouldn't keep doing that,

but really when it came

straight from the court,

it was just a tremendous resource that

I would really encourage the court to

start doing again,

just again for purposes of

maintaining as much transparency as

possible and really being very,

in other ways customer service oriented

for lack of a better term. I mean,

we know as practitioners that the

court's not there to serve us.

I mean the court's there to do its job,

but they're just little things like

that that I think really can make a

difference in not only how we as

practitioners perceive the court,

but how the public perceives it.

And you could forward that email

to your client and say, Hey,

this case in the Supreme

Court that we're tracking,

here's the update on it

prepared by the court.

Check out this information

and let's talk about it.

That was just a tremendous service that

the court was providing and I would sure

like to see it come back.

So my next one also has

to do with records and

it's that every court clerk and court

reporter kind of has their own schedule of

fees that they charge for clerk's

records, reporters records,

and that's sometimes across counties

and there just is no standardized cost,

and I recognize that's a big ask and

probably requires a legislative fix,

but from an access to justice perspective

and just an ability to estimate

perspective to try and help clients,

it would be good to have some kind of

standardized cost structure. I mean,

I recognize obviously the size of the

record is going to impact the cost,

but when you don't even know what the

per page charge or the preparation of the

reporter's record charges are

going to be, I don't know.

It would just be nice if there was

some way to kind of come up with that

standardized formula to be able to

predict going forward what it would be.

Yeah,

I remember the days of the clerk would

give you an estimate of clerk's record

was going to cost and before e-filing,

those numbers were really big seemingly

because somebody actually had to

physically go and copy the page

and create a paper stack that was

actually filed in the court of appeals

and bound together with candle wax seal

and the.

Ribbon and gold stickers, which

couldn't be cheap. Obviously.

It made it difficult to get a copy unless

you wanted to pay for a full fledged

copy. Well.

It did. You had to go check

it out and bring it back.

That's right. And don't

break the seal by the way.

That's also right. You can't

take it apart to copy it.

So those days are over and have been,

I've been pleased that I think the cost

of getting clerk's records in my cases

I've found have never been,

at least in recent times,

have not been quite as shocking

as they were in the beginning,

which was they were just as expensive as

they were when they were getting paper

files. The court reporter

stuff depends on the case,

but I've seen court

reporters records that,

I won't say that they rivaled

the attorney's fees in an appeal,

but sometimes they were in the same

universe for appellate attorney's fees.

And so trying to get that across to a

client that just getting the record is

going to cost sometimes tens

of thousands of dollars is

difficult and yeah, I'm with you. I mean,

some kind of standardization

would be nice.

I also am aware that court reporters

specifically have a very strong lobby in

our state and it's difficult If it were

going to be some kind of broad change

on this, it would be difficult to achieve.

But that's another one of

those industries where,

or professions where just like

law generative AI you would

think would pressure the

cost downward on that.

I hope nobody wants to egg my truck

after I say that out loud on the podcast,

but it's just, again, that's Todd Smith.

He's in Austin.

Texas. Again,

there are a lot of factors that go

into appeals being so expensive.

That's the one,

and that's generally the

first one that an appellant

sees in a case.

And so it's good to flag it good for be

good to raise it for further discussion,

not something you or I could solve

here today. It's out of our hands,

but just something to be mindful of.

That's right.

Another one I came up with is this

is I suppose relatively minor,

but our Supreme Court has been so

active in changing rules lately.

I just want to throw

this out for discussion,

and that is we don't have a cross appeal

rule in our state, in the state rules.

And I first came across this

issue probably 15 years ago,

and I had a case where there was going

to be a cross appeal and I was like,

why do I have to file three

briefs or I've got to file

as the appellant, I've got to file

my appellant's brief and reply brief,

and as the appe, I've got

to file the appe brief.

I do just two and combine those together.

And we don't have a rule that

specifically allows that.

Now there are local rules.

I know I happen to know that El Paso

has one doing more work in El Paso these

days and happened to be working on cross

appeal. And it reminded me, oh yeah,

would it be good if our rules of appellate

procedure just made this uniform?

And there are actually

more than one court,

intermediate court that

has a local rule on this.

Typically what they do is they factor in

the word count from all the briefs that

would otherwise have to be filed,

basically handling two

parallel concurrent appeals.

And so you've got to meet

all these deadlines and it's

like having two separate

appeals, literally what

the local rules tend to do.

And I was able to handle this by motion,

and this was not my original idea,

so I can't take credit for it,

but I was able to essentially adopt the

structure that the cross appeal rules

that exist in our court of appeals local

rules to where essentially the appe

brief would be a combined

appe cross appellate's brief,

and then everybody gets one reply. And

so you would take the overall number of

briefs filed in a cross appeal

case down from six to four,

and you might have the same

substantive arguments either way,

but just the act of having to prepare

the other document and brief it

separately on a separate timetable is

inevitably going to cost the client more

money. I thought, well,

this is a good time to throw this out

there that I would love for the Supreme

Court to ask sc, I

think this has happened.

Maybe I need to go back and

look at the Stack Archives,

but to at least revisit

the idea that, hey,

we're trying to clean some

things up in our rules.

Let's make it uniform about cross appeals.

I think the court could essentially look

to those cross appeal local rules as

the model and adopt something that would

make a whole lot of sense and make it

really easy for the parties. Because

if you don't have a local rule,

then you are put in a position of having

to try and agree with opposing counsel

on a motion to adjust the briefing

deadline and the content of briefs to

accommodate this.

I've had success with courts that

didn't have local rules granting those

motions, and so it works out.

But maybe even if we could just remove

that step and just make it again,

we're sort of talking about in this

episode making things uniform across the

practice in Texas, that would be good.

This is another one that again, is not

necessarily a specific court issue,

I think probably requires

a legislative fix,

but Texas should consider allowing

the recovery of supersedeas bond

premiums as a court cost in the

federal system. That is a possibility.

In Texas it isn't,

and I think it could really

eliminate or minimize a

lot of the satellite litigation that

goes over securing a judgment. I mean,

understandably, you get a

big judgment against someone,

you have some leverage over them for

settlement purposes if they're going to

have to pay for the cost of a bond or

they're going to have to fight about net

worth, and I completely understand that.

But the flip side of that is if you go

and you get the judgment reversed or the

judgment reversed and rendered or

whatever it is two years down the road,

it is not outside the realm of possibility

that your client has paid tens or

even hundreds of thousands of dollars

in supersedeas bond premiums to secure a

judgment that never should have been

entered in the first place. And there's no

remedy for that. They're

just out. And I don't know,

I think having it as a potentially

recoverable court cost solves some of that

problem because it incentivizes both

parties to work out those issues.

Maybe there's a way to secure

the judgment alternatively,

maybe there's just a

security by agreement,

but I think it cuts out those attorney's

fees, it cuts out costs potentially,

and it gives the court of appeals even

some discretion on how to do that,

I think because they can tax costs how

they want to tax costs on that kind of

stuff.

But I think that that's worth considering

and at least leave it as something

that's within the court's discretion to

award as a cost and maybe not in every

case,

but I think that putting that component

in is one thing that's missing right now

that could solve a bunch of problems or

at least help streamline the process.

Yeah, that's a great point.

Well, as you're talking,

you've got me thinking maybe there's

even a process that's sort of similar to

what we do in trial courts with

discovery. You've got a level one,

a level two or a level three case in

terms of scheduling the briefing and maybe

it makes sense that, okay,

this is a level one case.

This is a one issue summary judgment

appeal from a discreet record,

it's due within 30 days, 45

days. This is a level two,

it's a little bit more complicated,

so it's going to be the initial 60

day deadline. Level three is, oh,

this is a cross appeal. Hey,

we've got multiple briefs.

We really just need to enter into an

agreed briefing schedule. Let's do that.

I don't know, maybe there's a process to

have something like that at the outset,

which kind of goes with what Justice

Gunn was talking about a few weeks ago.

Maybe that's the status conference.

Maybe that's when you have a

status conference with the court,

the record gets filed,

you get a status conference set

within a couple of weeks or a month.

All the parties come in, you talk to the

court about here's what this is about,

here's what the record is,

here's what we think some of the general

buckets of issues are going to be.

Here's what we think we need to do to be

able to brief it and get it submitted.

I don't know, maybe that's

how that all fits together.

I like that. And no, that

was an intriguing idea that

Justice Gunn threw out,

and I think as I said,

when he did, I was like,

this is something that

ought to be studied.

It also makes me think your comment

just now also made me think of the Fifth

Circuit mediation program when

your clock's not even ticking

yet.

The court has screened the case ideally

with very useful information gathered

through a new docketing

statement that's fillable online,

imagine.

And now do they create a mediation

staff attorney like the Fifth Circuit

has the whole office? I think maybe,

but if you really want to facilitate

resolution of cases on appeal, I mean,

I think there are plenty of cases

that settle through that program.

And so rather even before the parties

even commit the time and expense it takes

to brief a case,

they know what the issues are usually in

a case and they know more or less what

the risks are, at least as they exist

coming out of the trial court. Now,

the appellate lawyer should be adding

value to that and either increasing or

decreasing the risk of there being

a different outcome on appeal.

But I do think that overall thing,

the overall scheme that we just

went through has appeal to it,

no pun intended.

No, we need to intend that pun. Sorry.

No, yeah, we can't help ourselves.

But no, seriously, think about it.

I mean you get better information

upfront through the docketing statement.

You get parties can agree maybe

on whether it's a level one,

two or three equivalent,

and maybe that does change the initial

briefing deadline and you get potentially

the input of a staff attorney.

And the trick would be do they handle

this court by court or how does that work?

Because your three judge courts are going

to have fewer resources than say the

Dallas or the Houston courts of appeals.

But it's something I think

worth exploring. I mean,

we just spend a lot of time thinking

about extensions and how to manage our

workload,

and this would be something that I think

would be a big benefit overall if it

could all pieced together into a way

that really takes into account the case

itself and not just

treats all cases the same,

all non-accelerated

appeals, I suppose the same.

Right. Well,

and maybe there's a whole different set

of rules for accelerated appeals and

that makes sense. I don't know.

There's a solution in there that somebody

probably smarter than us can figure

out,

but there is room for improvement across

the board on that because all appeals

aren't created equally.

But right now our rules kind

of treat 'em as if they are.

Yeah, good point.

This is an issue that is difficult,

but a lot of times in cases,

sometimes in the trial court,

sometimes at the appellate briefing,

sometimes in both places,

there's bad behavior by

counsel that just sort of gets,

I don't think it's unnoticed,

but it gets unaddressed.

And I'm not saying sanctionable,

but I wish courts were a little bit

more open to call out some of that bad

behavior in their opinions because when

it goes on and you get your court of

appeals opinion and it doesn't really

mention any of that, I understand it,

but it is helpful sometimes when you get

the opinion that takes just a minute to

kind of say, look, this was in the brief.

This shouldn't have happened

or this happened here.

This shouldn't have happened

because it discourages it.

And I think broad generalization,

sometimes it comes up when you have

trial lawyers playing in the appellate

courts doing the appellate role,

maybe not understanding the

standards of appellate conduct.

You get different tone,

you get different ways of handling

things that maybe don't fit.

And I wish courts were a little bit more

open to gently admonishing that just

so that it would serve

as an example. I think.

Yeah, I agree. I've seen it

happen the other way though too.

I've seen unwarranted

criticism in some opinions.

And I think that's the difficulty

is where do you draw the line? But.

Yeah,

there are times that I wonder if when

I'm reading appellate opinions when the

last time was that the authoring

justice represented a real client

in a real case.

And so that has to be factored

into because I think what

tends to happen is you

get into the ivory tower of

being an appellate justice

and you have your one job

and it's easy. You kind of get detached,

I think from being down here in the

ditch with the rest of us trying to

represent clients and do

the best by the clients.

But I'm totally with you on there's

conduct that just shouldn't be happening.

And yes, trial judges, you do it too.

I wouldn't say that's

a frequent occurrence,

but if a court is just to

follow a rule, for example,

I think that's okay to call it out because

the client from our side of things,

the client is entitled to rely on the

court applying the law faithfully.

So that's perfectly fine.

And then when a lawyer is doing things

that are just outright improper,

I've got an appeal going right now

where my trial counsel is after me

essentially to try to get the trial

lawyer from doing something in this case,

supplementing the record with things

that weren't before the trial judge

and thinking that there has

to be a remedy for that.

And of course I don't want

give any more detail than that,

but if there was a remedy for it

besides say moving to strike the

improper supplement,

if the court would say something

other than just a generic,

we're not going to consider

that on appeal and that's fine,

but I think a bit of a bench

slap occasionally is not a

bad thing if somebody's acting out bounds.

Well, that's right,

and I think about the series of AI cases

that have made their way across social

media about parties with hallucinated

cases and briefs and stuff.

I think courts have done a good job of

explaining how those cases come about,

what happens. I think they've done a,

and I just wish that happened more in

some more standard kind of civil appeals

and trial court things in state court

because I just don't think that that gets

done enough. And I'm not

necessarily talking about AI,

and I'm also not talking about just

someone has a bad day and makes an off the

cuff remark that they shouldn't have or

a judge yells at parties when they're

frustrated.

It's more there's conduct that clearly

goes over the line of acceptable

standards that just kind of gets ignored.

This kind of dovetails with the idea

that appellate courts just really don't

like sanctions. And so this

gives the court, I think,

an option to do something in

air quotes without resorting to

sanctions.

Although I tend to think that appellate

sanctions are underutilized because I

think there are times when there's

just nothing short of the sanction.

We'll deal with a certain

behavior. It's the bad stuff.

It's not just you didn't cite a case

in your brief or something like that.

Things that just where there really

isn't any question that certain conduct

ought to draw sanctions,

and I'd like to see the courts exercise

their authority to sanction lawyers

inappropriate cases. Should

it still be rare? Yes.

But if it never happens,

then where's the deterrent?

So to that point of

deterrence, okay, well,

I've got one or two more and we have still

have a few on the listener suggestion

list aside from what you have,

but one of the things that I've noticed

really over the last year or more than

anything is that it used to be

really easy to go and subscribe

to the regular orders list from

intermediate courts of appeals.

This is one of the things that the Supreme

Court I've already hinted at this is

really great about, you can get

on the email subscription list.

I think Sly McCarthy way back

when started it and then when he

left, they turned it over or turned

it into a constant contact list.

I believe that you can

literally opt into that simply.

And so that I think is really, again,

one of the things I think the court

really does is making it easy.

If you want to get a weekly email

with all the orders and opinions,

you just opt in. You do anything

else online, you sign up.

There was through the courts of

Appeals official websites at one

point a way to do that for orders and

opinions on a court by court basis.

And as far as I can tell,

that's been broken for a couple of years

and I hope somebody will tell me I'm

wrong and I'm just not doing it right.

But I remember the last time I

looked at this issue thinking,

I really want to get subscribed to

say the third quarter of appeals.

I won't give the 15th quarter as an

example. I don't think I tried that,

but you get the 15th.

I get theirs actually.

Yeah, and that's good. I need

to subscribe to that list.

But if you're practicing in say, Eastland,

and you want to know what the Eastland

court's doing week in and week out,

you would think it used to be that

you could get that court's orders and

opinions as they came out in real

time in an email rather than, I mean,

I guess you could make the argument, well,

if you really care about it that much,

just go look at the court's website. Yes,

you can get 'em that way, but I'm sorry,

it requires me to click a few times

and this ought to be something either I

could set an AI agent on my browser

to go and get 'em for me. Yeah,

I could probably do that. But again,

in the interest of transparency,

make it easy for people to know what

the court's doing, and this might be,

I haven't asked anybody at OCA about this

recently. It might be something for me

to take up with a new

technology director at OCA,

so I will make a point to do that,

but if there's anyone listening who has

input on this or has a different take on

it, let me know because do I want to

get every order from every court? No,

I don't. That would be pretty

overwhelming. Select courts, okay,

Jody says the 15th is working,

but the third or the Houston courts or

the other courts that I'm in more and

more often,

that was an extremely convenient thing

when those just arrived in my inbox and I

would sure like to see those come

back. The business court, as we know,

is making its opinions available

online, but as far as I know,

those are not available through

an email subscription either.

And so I'll add the business court to

the list of courts that we'd like to see.

I mean, they're essentially,

that court is treated as if it was an

appellate court just by virtue of its

writing opinions.

There's lots of things that

are made available publicly

that would be one that I

think would be significant to

include in that list as well.

And they do a good job on their website

of putting up each case that comes out.

They have a public domain

citation format and a summary,

and I think that's really helpful.

And I know they have different

resources than some other courts do,

but it's very user-friendly,

which I appreciate.

True. Yeah, that's been my experience too.

That's a court things are really starting

to heat up in that court right now.

I'm starting to try cases, and

so it's just going to continue.

If we could get notified of the orders

and opinions that come out from that

court too,

that would be tremendous for those of

us that are in that court from time to

time.

I'm going to lump

together a couple of them.

One of 'em is one of mine and another

one is from our listener that I also had

on my list,

and it's the idea of issue

grants and telling us the issue.

So one of them for the

Supreme Court of Texas,

I wish that sometimes they would take

cases up only on specific issues. I know,

and I've talked to the justices why they

don't necessarily want to do that right

now because they feel like they need the

full briefing to be able to know what

some of the issues are.

I just wonder if as the process changes

and we've got this new petition for

review, no more briefed issues if

they're going to start doing that,

I think it would be helpful

because a lot of times,

especially if maybe both

parties are cross petitioning,

there's a lot of briefing that has to

be done for stuff that the court's not

really interested in.

So that's kind of thought one.

The other one is more

generally for appellate courts,

I wish that they would depend

on, in every case maybe,

but in some cases at least kind of

send out in advance of oral argument,

here's the topics we'd

really like you to discuss.

Because in a standard civil appeal

that's got three or four issues and a two

week jury trial, and there's a lot of

things to prepare for oral argument,

and obviously I want to be able to

prepare and talk about whatever,

but if there's two or three things that

the court really wants to know about,

I would love to know that so that I can

tailor my time to talk about what they

want to talk about.

I think it's just in everyone's benefit

to the extent that that's possible.

One thing I wanted to bring up

that I think is interesting,

the first court of appeals I noticed has

started doing a pilot program. It's not

exactly what we're talking about,

but in some of their most

recent oral argument notices,

they haven't paragraph in there about

a pilot program that says each side's

going to be allowed to open with

two minutes of uninterrupted time.

Counsel may use the full two minutes

or only part of it or none of it.

The purpose is to allow counsel a

chance to prepare an elevator pitch that

highlights whatever points counsel deems

worthy of attention and rebuttal will

not have any guarantee

of uninterrupted time.

I don't know if any Texas

appellate court that's done that.

I think the Fifth Circuit does that with

on bog arguments just given the number

of justices or judges that are

going to be asking questions.

But I kind of like that knowing that

you've got a two minute introduction to

kind of orient the court and get 'em on

what you think they need to be talking

about. So I think that or that paired

with oral argument kind of topics,

boy,

that'd be great for everybody because

we could just get in and in 20 minutes

have the conversation that

the court wants to have,

which we're going to end up doing anyway.

But if everybody knows what

that is and is really prepared,

you can get into some

great oral arguments.

I like that the court wouldn't

be telling the advocates,

these are the only things

we're going to talk about.

So to the point about issue grants,

maybe issue grants are harder to do

now that the rules have changed and the

Supreme Court is granting

without full briefs,

but it's sort of almost like

a compromise on issue grants.

If the court will, when it's

granting and when, well really,

when it's setting the

cases for oral argument,

letting you know that the principal

issues or issues that counsel should be

prepared to argue on, I think

that enhances the oral argument.

You hear the story so often that, well,

oral argument's not really necessary

in most cases. That may be true,

but there's always some issue that could

stand to be a little more fleshed out

in a two week jury trial case to have

the lawyers know upfront what are the

one or two things that the court

is primarily interested in,

not exclusively, but primarily.

I think that would really help

make oral argument better. Agreed.

And the idea of the

soliloquy is interesting too.

I'm not sure I'd know what to do

for two minutes at the lectern.

We don't have to have all of

it, but I do kind of like that.

It's that kind of strange line between,

I definitely don't want to have an oral

argument where I'm the only one that's

going to talk to the panel for 20 minutes.

That's no fun. That's just a speech.

But it's also hard when

you are 10 seconds in,

you said your name and the questions

just start coming to, I don't know.

It's kind of nice to

know, okay, I can do this.

I can kind of stick my

one minute introduction in

there of here's the things I

want to cover and talk about and give

'em a broad overview and then let's go

where the court wants to go.

I think that's interesting.

I'll be curious to see how that works

in Houston and whether some other courts

start to follow that approach.

Yeah, for sure. You said

that was in the 14th.

First.

On the first. Okay. I just filed a brief

on the 14th requesting oral argument,

so I guess that won't impact me yet.

We've got more coming on the first,

so we'll see.

Well,

I've got a couple I think quick ones from

the listener's suggestions that again

tie into the theme of transparency.

One that was suggested that maybe the

courts of appeals could put out case

summaries like what the Supreme Court

does. I like that idea of course,

and maybe you tie it to the orders

list that we were just talking about.

Again, I think the issue

there is well, okay,

with what resource for the

court's going to perform this?

Do you want to rely on AI to

draft your summaries and check?

I've had no comment, I guess, but.

Maybe as the starting point,

but I think you got to have somebody read

it if the court's going to put it out.

Yeah,

I mean what the Supreme Court does

is those oral arguments or those

case summaries rather,

or the starting point to the paper

that the court does keep updated and

somebody a justice presents at

basically every appellate CLE,

the Supreme Court updates.

So you do this little bit of work and

these summaries and it applies and is

plugged into this bigger body of

work that I think is very beneficial.

You could read that paper exactly what's

happened in the Supreme Court for that

particular term.

I think the local appellate bars might

help facilitate something like the case

summary.

I don't know if there's the kind of demand

for that in those intermediate courts

of appeals, probably on the urban courts,

but maybe not for the rural courts.

But still, it would be nice

if you could subscribe,

get the emails of the opinions and orders,

and then have a paragraph on each opinion

what it's about and what the outcome

was.

That would be, I think, a big benefit.

And kind of a semi-related

point again about,

I'm just going to keep beating

the drum on transparency.

We have some intermediate courts of

appeals including the 15th that comes to

mind right away, that also make their

oral arguments available through YouTube.

I think there may be more that do

that. And so somebody suggested, well,

it'd be nice to have consistency in

having oral arguments available online

across the intermediate courts.

I think you again run into

resource problems with that.

There's not going to be

cameras in every courtroom.

It would seem you could

make audio available,

very reasonable cost if any cost.

So that might be the best

you can do in some courts,

at least for the time being. But

I think it's worth mentioning,

it would be nice if you had a case,

and I'll just pick on

Eastland a little bit more.

If you had a case in Eastland that's on

point with yours to be able to go and

view the oral argument in that case and

track it would be big and help you do a

better job for your clients. I think

we've got a few more on the list.

We might be able to

squeeze 'em all in. Jody,

if you want to tackle another topic.

Sure. Well, I'll tack

onto the transparency one,

someone suggested the courts of appeals

start doing like a Domino's Pizza

tracker on their website, which I

mean, I don't know how feasible it is,

but I kind of love that. But I do, I mean,

it's a great suggestion

just because it's fun,

but I think that is something

that attorneys and in

particular clients struggle

with. And I don't know

what the solution is,

but I know talking to

court of appeals justices,

they've got criminal

cases that take priority.

They've got parental termination

cases that take priority.

They've got all sorts of accelerated

interlocutory appeals that take priority.

And from an outside perspective, we don't

really know where we fall in the mix.

And I think that that's hard because when

you tell the client has oral argument

and they say, okay, when do we expect

an opinion? And the answer is, well,

it could be a couple of weeks, could be

a few months. And we just don't know.

I mean, that is a hard answer to give,

and I don't know if there's a way to

have more transparency or what that looks

like, but I guess all I can

say is I wish there were.

Yeah,

I think we had more than one person in

response to the LinkedIn posts make that

basic suggestion. A few with, I

wouldn't say colorful language,

but maybe descriptive language of

dealing with the black box that

is the court of appeals, I

think is how that was described.

And we don't want to single

out the courts of appeals.

The Supreme Court can

kind of be that way too,

although it's less so since they've

been cranking out opinions in all their

granted cases every year for a

number of years in a row now.

Oh, very much.

But yeah, it is really hard to advise a

client when the best you can do is say,

well, we just really have no to

know how long it's going to take.

My concern with that has

always been undermining.

No one's doing it intentionally,

but the indirect effect of

that lack of transparency is

to undermine the client's confidence

in the appellate lawyer because

you're supposed to know, and

we have sources we can turn to.

We can look at stats

from OCA, we can look.

At, there's general data.

We can look at papers that people write

and as far as how long things generally

take, but it's kind of

like saying that, Hey,

we have a 10% chance of getting our

petition for your review granted in the

Supreme Court. Well, yes,

that's statistically true,

but is it true in your case?

It doesn't really add much.

That number doesn't mean much. And so

those stats to me don't mean a lot.

I don't know what the solution is,

but if somebody could figure out a way

to install the Domino's Pizza Tracker,

I love that.

That'd be great. Justice so-and-so

has started preparing your opinion.

Staff attorney is checking citations.

I'll give credit where

credit is due on that.

That was Ryan Owen who came up with that.

Okay.

So Ryan, if you're listening, thanks

for the visual that I will never forget.

That would be really great if it

could happen if's one or two more.

Let me tackle one that I think

will resonate with people, and

I think this was Rachel Stinson.

I'll call Rachel out. She won't mind.

She commented about it publicly online,

but the very infamous one sentence,

Manus denial,

and I think my comment on this

is for those don't appreciate it,

most mandamus are resolved with the

following language, if not exact,

very, very close to this in an order.

The petition for writ of

mandamus is denied, and that

is it. That's all we hear.

The problem with that mandamus

is an extraordinary writ.

It's not supposed to be granted frequently

the courts are not required to give

their reasons for

denying mandamus, unlike,

as we have discussed

recently, permissive appeals.

But a mandamus is kind of like a

permissive appeal, and it involves,

most often it involves as much

work as an ordinary appeal or a

permissive appeal.

Perhaps even more.

Yeah, it can be more because you have to

compile the record among other things,

and it's a difficult standard to meet.

So it does require a lot

of good lawyering too.

This is another one that falls into the,

what am I supposed to tell my client

bucket? Because you tell the client,

Hey, yeah, you got a good mandamus.

You're advising them. Yeah,

I think the trial court got

it wrong here. And yeah,

I think this is an abuse of discretion

and I think we have a decent shot on

mandamus.

I don't think you get to say it's a

discovery order and you're ordered to

produce. There's no remedy at law for

producing say confidential information.

Once the cat's out of the bag, it's out.

So when you get that particular

type of order in response to the

hard work that went into

preparing a petition,

it's kind of a gut punch.

I have seen some courts full

paragraphs, but those full paragraphs

basically just recite the standard.

Well, lemme say when they do this,

it is not much better than

the one sentence order,

and that is when they simply recite the

standard and conclude that it wasn't

met. It would be most helpful.

And I'm not sure what the

court's incentive is to do this.

The intermediate court's

incentive would be to do this,

but it would be most helpful if the court

could give the parties a more specific

idea of what it found to be

persuasive or not persuasive about

the petition so that

the client would know,

so that the lawyer would know,

and maybe that would influence how

the lawyer or counsel's clients

in the future and influence other

lawyers thinking about bringing mandamus

petitions in that court.

We're supposed to do our job

representing our clients,

and I think it would help us do a

better job if we knew what the court was

thinking rather than just as, I think

I'll call Rachel out again on this.

I think her comment was,

give us more than that,

that proforma sentence. Was it untimely?

Was there an adequate remedy on appeal?

The trial judge got the law right

after all. That's a good point.

Or the one I was going to

mention specifically is here

is what Rachel said here.

Was it raining on a Tuesday?

Or you can think of any other

equivalent ridiculous explanations,

but we can't tell anything other than

that. It was raining on a Tuesday,

and so the court denied the petition.

So I've gone on probably longer

than I needed to about that,

but I think that's something that the

courts could help practitioners with for

sure. You see any others

here that you want to cover?

We only have a couple left, I think.

No, I think we've got a pretty good list.

I think we've covered a lot of these.

Yeah, I'll just throw out another

one. Somebody said the courts,

the intermediate courts could rule fast

on unopposed motions like SCO Kotex.

I'll praise the Supreme Court for that.

Supreme Court does rule fast on

opposed motions usually in a day.

And some other courts do too.

There are certain courts that I get

really quick rulings on things like that.

I've seen some take longer and

it's kind of a mystery as to why,

but I thought that was

worth mentioning. And again,

tying into the Domino's Pizza

tracker and transparency overall,

there were folks that were complaining

about delays in ruling on motions.

I think that is going to depend on the

motion. If it's a motion to dismiss,

of course it's not going to get ruled on

in a week if it's a contested motion to

dismiss. If it's a motion for extension

of time, that's a different story.

So I don't think you can generalize

much there, but if you can't tell,

I think at least from my perspective,

the theme of today is for as much

transparency as the courts can

adopt and display,

the more the better from

the perspective of the

litigants confidence in the courts,

from the perspective of the

lawyer's confidence in the courts,

and as we've said repeatedly from

the perspective of the lawyer who is

advising clients on what

to expect from an appeal.

That last statement kind of

starts to sound a little soapboxy.

So that's not really what I intend,

but this is just a gentle reminder for

those who have not been in practice

for a while,

that these are the realities that we

deal with day in and day out in our

situation as practitioners. And so,

Jody, if you don't have anything to add,

I'll just say we appreciate the judges

who are listening this. Thank you.

Please take it in the manner in which

it was intended. We don't really.

Think, and that's Todd Smith,

Austin, Texas State Bar number.

We're not really

intending to call you out,

but just I think it is important

that these kinds of issues be

aired. And if there's any of

these that need further airing,

if we come up with more thoughts on them,

then we might follow up

in a different episode.

Well, and if anybody, if any

judges, rules committee people,

anybody ever wants to come on and

talk about these, please let us know.

We would love to have

other perspectives on it.

These are just kind of ours from our own

experiences or conversations with other

people. So if anyone has thoughts or

wants to come talk about 'em, let us know.

Yeah, I would love that.

I thought it was very valuable to have

Rich Phillips come on and talk about

Stack and the internal processes it

goes through, and the transparency.

There's that word again that SC

operates under. And so please,

if there's a justice on any intermediate

court or the Supreme Court that wants

to come on and challenge us on some of

this stuff, we welcome the opportunity.

Or just talk about it. I mean, you

don't even have to challenge us.

If you just have thoughts that

are different than ours, come on.

We'd love to have a conversation.

Maybe we can get Justice Busby to come

talk about why the court doesn't want to

do issue. Grant.

Todd Smith, Austin, Texas.

I only say that. I know that he's talked

about that a little bit in the past.

Alright, well, Jody, I think this

is very helpful. Good conversation.

I'm enjoying our one-on-one episodes

that we've been doing lately,

so let's keep 'em up. And

thanks everybody for listening.

Thanks for listening to the

Texas Appellate Law Podcast.

If you enjoyed this episode,

please share it with your colleagues

and rate and review the show on your

favorite podcast platform.

To connect with us,

suggest a topic or inquire

about being a guest.

Visit texapplawpod.com or

find us on LinkedIn and X

at texapplawpod. Produced

and powered by LawPods.

The views expressed by the participants

on this podcast are their own and not

those of their law firms,

courts, or employers.

Nothing you hear on this show establishes

an attorney-client relationship or is

legal advice.