David Coale, former head of the State Bar appellate section, has started a new blog about the Fifth Circuit. It’s called 600 Camp, after the address of the John Minor Wisdom Courthouse in New Orleans.

Mandatory appellate mediation turns out to be mandatory

Disputing has a post about what happens when a party walks out before a court-ordered appellate mediation has run its course. The title gives away the ending: “Texas Court of Appeals Dismisses Appeal Because Appellant Walked Out of the Court-Ordered Mediation”

This happened in the Waco Court of Appeals. The court’s notice specified that dismissal would follow if the appellant did not attend the mediation. The court’s opinion is here.

Election season is underway

Morgan Smith of the Texas Tribune has the first piece I’ve seen about the 2012 court elections. Her story is about former Justice Steve Smith’s filing to, once again, run against Justice Willett for the Republican nomination.

Oral Arguments This Week

You can check out past and current arguments on the St. Mary’s video archives page.

Tuesday

• SafeShred, Inc. v. Louis Martinez, III, No. 10-0426. Are there exemplary damages for a Sabine Pilot claim (wrongful firing for an employee refusing to do an illegal act) and, if so, was the amount of exemplary damages awarded here excessive? (>> earlier post)

• Shell Oil Company, et al. v. Ralph Ross, No. 10-0429. Broadly, the case is about how the statute of limitations applies to royalty claims when there is an allegation of fraudulent concealment.

• Weeks Marine, Inc. v. Maximino Garza, No. 10-0435. A Jones Act (maritime) case about how to divide responsibility between the worker and the employer. >> earlier post

Wednesday

• Natural Gas Pipeline Company of America v. William Justiss, et al., No. 10-0451. In a nuisance claim about a reduction in property value alleged to have been caused by the gas pipeline: (1) how much worse must the condition get to re-start the statute of limitations and (2) what evidence is proper to show the reduction in property value? A potentially much broader issue here is the petitioner’s request for the Court to limit the “property owner rule” that (traditionally) lets an owner testify as to its value without the need to hire an expert witness.

• Hearts Bluff Game Ranch, Inc. v. The State Of Texas and the Texas Water Development Board, No. 10-0491. Can the State’s actions, which were alleged to have directly interfered with the issuance of a federal permit, constitute a taking under state law? >> earlier Texas Tribune article

• Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, No. 10-0513. Do “health care liability claims” include allegations of assault or sexual assault by health-care providers? >> earlier post

Thursday

• Port Elevator-Brownsville, LLC V. Rogelio Casados, et al., No. 10-0523. Does the bar against lawsuits created by the workers compensation law apply equally to suits by temporary workers?

• In re United Scaffolding, Inc., No. 10-0526. How much specificity is needed in an order granting a new trial based on the great weight of the evidence?

• Rusk State Hospital v. Dennis Black, et al., No. 10-0548. What should courts do when a government agency raises sovereign immunity during a limited interlocutory appeal challenging something completely different?

• Monday and Tuesday: The calendar shows a private conference of the Justices. This is the Court’s first formal conference since August.

• Friday: Regular weekly orders list

The next oral-argument sitting begins next Tuesday. The next conference date is October 17, 2011.

• Through Wednesday: The calendar shows the Texas Center for the Judiciary’s annual judicial conference. You can read more at this link.

• Friday: Regular weekly orders list

The next internal conference of the Justices will be next week.

The Temple of Justice

That’s the name given to the Washington Supreme Court’s building, and it is also the name given to a new website devoted to that court. TempleOfJustice.org is a joint project of the political science department of Washington State University and the Oyez Project.

It may be too early to tell, but the focus appears to be on case summaries and packaging the courts’ public information in a more user-friendly form.

Spelling made-up words

“Frac, Frack, or Hydrofrack?” (Blawgletter)

No, this isn’t a Battlestar Galactica post. Instead, Barry Barnett takes a look at different ways of turning “hydraulic fractioning” into a verb.

In Railroad Commission Of Texas v. Texas Citizens For A Safe Future And Clean Water, No. 08-0497, the Court chose the form “fracing”:

Fracing a well entails pumping large volumes of water and sand into reservoir rock, which then mixes with saline formation water and must be flowed back out of the well before production can begin.

Barnett suggests that the hard “k” of “fracking” would make this process sound ominous, while omitting the “k” (“fracing”) makes it sound “almost benign.”

The insurance/reinsurance case draws more attention

Last Wednesday, the Court heard oral argument in Texas Department of Insurance v. American National Insurance Co. and American Life Insurance Co. of Texas, No. 10-0374, a case about the scope of the state insurance agency’s regulatory authority. An article in Business Law Daily talks about some of the amicus interest in this case: “National Trade Group Defends Texas Appellate Ruling On Reinsurance”.

• Labor Day (Monday)

• The state bar’s Advanced Civil Appellate Seminar (Thursday & Friday). Three of the Justices will be speaking at a panel on Thursday morning, and Justice Hecht will be delivering the “Texas Supreme Court Update.”

Oral argument advice from Justice Mosely

Justice Jim Mosely of the Dallas Court has written “How To Deal with Questions from the Bench.”

There’s some good advice here, starting with the equation “question = opportunity.” If your preparation time is spent polishing a speech instead of thinking about questions, you are missing what’s unique about appellate argument. Justice Mosely breaks down possible questions into four broad categories and offers some suggestions for dealing with each.

Along the way, he made a point that I hadn’t seen put quite this way. The usual advice, of course, is to respond directly to questions. But:

There’s one exception to the direct response rule: “Your honor, to answer your question I have to go outside the record.” If counsel doesn’t alert the court to that situation, he risks a counterattack from opposing counsel and a possible loss of credibility.

If a complete or direct answer would take you outside the record, alerting the Court gives them a chance to decide whether they really want to know (as for a policy question) — or whether they want to focus on the procedural limits of the appellate record.

Don’t Mess With Texas State Court Documents

Rachael Samberg at the Stanford Law Library has a blog post about Texas’s efforts to preserve judicial records: “Don’t mess with Texas state court documents”

• Last Day of the Fiscal Year (Wednesday): August 31st is the end of the fiscal year in Texas, as well as the traditional cutoff for the official court statistics. It is not unprecedented for opinions to be released on this day, even when it does not fall on a Friday.

• Weekly Orders List (Friday): The smart money says there will be fewer than 19 opinions this week.

Statistics are now updated

The DocketDB opinion-statistics charts have been updated through the end of the term. After logging in, you can find these under the “Research Tools” menu.

• Conference (Tuesday/Wednesday): This is the Court’s last private conference scheduled for the fiscal year. I would expect the focus to be on finalizing opinions, especially in older pending cases.

• Weekly Orders List (Friday): This one could be busy.

Briefing Requests

If you’ve been reading the sports pages, you might have heard that the Texas Supreme Court released at least one new briefing request. You might not have seen the whole list of recent requests on August 19th.

Among the other requests, the Court asked for briefing in the Austin Court’s same-sex divorce cases, which follow the request earlier this month for briefing about the Dallas Court’s case.

The Zoopreme Court

I might be late to the party, but I just discovered The Zoopreme Court, caricatures of U.S. Supreme Court justices and leading cases that aim to fulfill the promise of “equal justice under paws.”

You can start with the classic Otter Stewart or you might prefer the more Texas-themed John Paul Steervens.

• Conference (Tuesday): This is the Court’s first private conference in more than a month. I don’t know if they will be finalizing any opinions, but I would not be surprised to see a flurry of petition denials, briefing requests, and perhaps a few new grants of review this Friday.

• New Law Clerk Orientation (Wednesday/Thursday)

• Weekly Orders List (Friday)

“Perry This, Perry That”

There was a little news from out-of-state this weekend that might affect coverage of the Texas Supreme Court in coming months.

Beating that rush, the Texas Tribune ran an article last Friday about Governor Perry’s role in appointing a number of the Justices: “Supreme Court is Elected, but Bears Perry’s Stamp”. By my count, six of the current Justices were at one point appointed by Perry before winning election. One of those, Justice Lehrmann, had already won her party primary before being appointed to serve the few months before election day.

The article has some thoughts about Perry’s philosophy of appointing judges.

Justices 1836-1986

I saw an announcement that the UT Law Library had redesigned the website for its “Justices of Texas 1836-1986″ project. It’s worth checking out if you’re a fan of Texas judicial history, even if it’s frozen at the sesquicentennial instead of our current dodransbicentennial.¹ Don’t miss the cartoon drawings of early Justices, including Texas’s first chief justice.

OCA review of legislation affecting the courts

The Texas Office of Court Administration has released its report on the new legislation affecting the court system.

“The Role of International Law in Texas Jurisprudence”

A post by Carl Reynolds on his CourTex blog points out a paper by Martha Lackritz on the limited ways international law has been used in Texas cases.²

2011 voting stats, coming soon

I’m giving a little thought to which stats I should prepare once the Texas Supreme Court finishes up its fiscal year at the end of August. Do you have any favorite statistics or vote breakdowns you’ve seen for other courts? Do you prefer a web-based stat pack (as I’ve done in the past) or a PDF that might be easier to share or to print?

1. Yes, I looked that up.
2. If you’re counting, this is the second time in a week that I’ve linked to something written by Martha.

In mid-August, the Court will hold a long conference as its new clerks start their year.

By around the same time, the Court should also announce its fall argument calendar.

This starts a new pattern for the month of June, with a conference scheduled each Monday — a chance to finish up any lingering work for the term. After that, no conferences are scheduled until mid-August, when the new law clerks arrive for the fall.

Articles from the Past Week

• The big news of the week was the Governor’s veto of S.B. 2038, which passed the Legislature overwhelmingly and would have immediately changed some of the ground rules for statutory construction.

  Before that veto, the press had focused on the other Entergy-inspired bill, which would have changed the substantive workers compensation law. That Entergy bill was “apparently dead” in the closing days of the Legislative session.

• Adam Liptak wrote about studies suggesting that results of U.S. Supreme Court cases can be predicted by comparing the number of questions each side is asked by the Justices at oral argument.

• The Court ended its week with a quiet order list, with which no petitions were granted and no opinions issued.

Articles from the Past Week

• On Friday, the Court issued opinions in four cases. One of them was a fairly significant case about shareholder derivative suits in Texas, which although rare, are of great concern to the corporations formed here. I summarized this case in my post about the order list

• The other three cases all related to the Texas Tort Claims Act. In all three, the Court held that the state was immune from suit. Summaries of those cases are also in my post about the order list.