The case is In re Stephanie Lee, No. 11-0732. It’s a mandamus challenging a trial court’s decision not to approve a mediated settlement agreement in a custody dispute.

According to the article, this case is the first time in about twenty years that the family law section of the state bar has weighed in with a Texas Supreme Court amicus brief.

The State Bar argues in its amicus brief (PDF) that the statute allowing these mediated settlement agreements limits the trial court’s discretion to second-guess the decisions made about the child’s best interests. The practical concern is that litigants are less likely to choose mediation if they fear that the trial court will simply reject the conclusions.

The State itself (through OSG) filed an amicus brief (PDF) last month taking the opposite view, arguing that the trial court has an overarching duty to look out for the best interest of the child when entering family-law orders.

Hat tip: Disputing

Circuit Splits

Newly minted attorney Nicholas Wagoner has hit the ground running with Circuit Splits a blog focused on the U.S. Supreme Court. Well, to be more precise, it’s focused on cases in lower courts that show the kind of circuit split that might tempt the high court to grant review. The updates also flow through to the blog’s Twitter feed.

It’s reminiscent, both in name and content, of the “Split Circuits” blog by Professor Benjamin Spencer, which has been running since 2005.

It’s good to have multiple eyes on the same problem, and the early output is impressive. More importantly, the authors of Circuit Splits makes an effort (in the right-hand column) to break the cases down by circuit of origin and by topic — which is, after all, what a reader would care about. Will that scale? I don’t know. But I’m glad that the new blog is already focused on that key problem.

Texas Appellate Watch

The other new blog is Texas Appellate Watch, started by Scott P. Stolley and Richard B. Phillips Jr. of Thompson & Knight.

The emphasis so far is on the Texas Supreme Court (its weekly orders are noted) and the Fifth Circuit. The authors also pass along some articles they have written on more general appellate topics (like what words to avoid in a brief).

If you have questions for the panel, Todd Smith is collecting suggestions on his blog post about this panel.

The Ghazali laser-hair-removal case is done

The Court had set Basith Ghazali, M.D. v. Brown, No. 10-0232 for oral argument in September. The case asked how the Texas medical-malpractice statute applied to laser hair removal — an issue on which the Dallas Court has also weighed in.

When argument day came, the parties asked the Court to postpone the argument pending a possible settlement. Today, the Court granted the parties’ joint request to dismiss the case.

The Severance beachfront-takings case is back from the Fifth Circuit

In July, the Court removed the beachfront takings case, Carol Severance v. Jerry Patterson, et al., No. 09-0387, from its active docket until the Fifth Circuit spoke first about whether the underlying controversy had been mooted by Ms. Severance’s sale of her property. The Fifth Circuit concluded that there was still a live dispute between the parties and thus the dispute was not moot.

Today, the Texas Supreme Court formally returned it to the active docket.

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?

The Court’s statistical year runs from September through August, so last week’s opinions were a year-end burst of activity.

How many argued cases are left to be decided?

Fewer than you may think. After combing through the numbers, I found four (yes, only four) argued cases that had not been decided by August 31st. That count excludes abated cases (such as Severance, which was abated to let the Fifth Circuit address mootness). This week, the Court returned the abated Bison Building Materials to its active docket. So that makes five:

• Bison Building Materials, Ltd. v. Lloyd K. Aldridge, No. 06-1084 (argued Jan. 16, 2008). Just reinstated to the docket today.

• City of Dallas v. David S. Martin & George W. Parker, et al., No. 07-0288 (argued Dec. 17, 2009).

• The Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel, No. 08-0964 (argued Feb. 17, 2010).

• Sharyland Water Supply Corporation v. City of Alton, Carter & Burgess, Inc., Cris Equipment Company and Turner, Collie & Braden, Inc., No. 09-0223 (argued Mar. 24, 2010)

• Vernon F. Minton V. Jerry W. Gunn, individually, Williams Squire & Wren, LLP, James E. Wren, individually, Slusser & Frost, L.L.P., William C. Slusser, individually, Slusser Wilson & Partridge, L.L.P. and Michael E. Wilson, individually, No. 10-0141 (argued Mar. 1, 2011)

By this count, there was only one case argued last year that has not yet been decided (and it was argued just six months ago).

1. I’ve written about it before, but it may mean less after the Court has spoken to Hall Street in the NAFTA Traders case.

The Texas Supreme Court has posted its clerkship brochure. As the brochure quite rightly notes, the experience for its law clerks is unique:

Unlike most appellate courts, the Texas Supreme Court has discretionary review only of civil cases and almost exclusively among appellate courts permits law clerks to sit in conference for its deliberations. ¹

The brochure has the needed details. The Justices are accepting applications now and, according to the brochure, interviews “will generally be scheduled no earlier than mid-September 2011.”

1. Those little words matter. The Court’s civil jurisdiction means that you don’t see death-penalty appeals and, except for the occasional juvenile-justice case, won’t see criminal issues. Discretionary review means, not just that the Court can focus on interesting issues, but that you can start to get a feel for what makes an issue interesting enough to hear.

Most of her points are applicable to any appellate court. There are two points, however, that highlight an important difference in practicing in a state’s highest court.

Don’t confuse persuasive authority with controlling authority

Martha’s observation here might worry attorneys who think their previous arguments can be recycled in the Texas Supreme Court. Lower court briefs tend to wield authority as if it compels the court to decide your way.¹ In a court of last resort, that doesn’t go over so well:

It surprises me how many briefs before the high court cite to intermediate appellate court case law as though it were the law of the land.

She recommends that you ground your argument on principles from supreme court cases instead. I would add that your discussion of these cases should go beyond citing a holding to also explain why that holding should be persuasive. On many key points — perhaps any point so undecided that it warrants the Court stepping in — you won’t have a direct, controlling supreme court case.

Don’t confuse importance to you with “importance to the jurisprudence”

I didn’t see it at first, but I think there’s actually a subtle relationship between that point and her next one, which is about what happens when you write a brief in hyperbole:

Phrases like “unleashing havoc,” “travesty of justice” and “nefarious claims” are overly dramatic. A lawyer who writes as though the outcome of her case threatens to trigger the apocalypse achieves the opposite of the hoped-for effect.

This is at one level a basic tone problem. You can watch the eyes of appellate judges dim slightly when an oral advocate “unleashes” a jury argument.

But there’s something deeper going on, I think. Texas Supreme Court practitioners are told that we need to demonstrate the importance of our petition for review. If you are not used to thinking about the Court’s discretionary review, and only have the narrow perspective of the one case in front of you, it may not be obvious to you how. There’s no single answer — what we do is thankfully still more craft than science — but if you find yourself italicizing an adverb, you’re probably on the wrong path.

This is where Martha’s two points overlap. She is absolutely right that, when the Court sits down to decide the merits, the opinion will be grounded in its own precedent more than that of lower courts. The wrinkle is that the Court also has discretion over which cases to hear. When choosing, the nuances or weaknesses of those (mere) intermediate court of appeals opinions can be woven into a persuasive argument about improving the jurisprudence. On the other hand, if the advocate has treated those court of appeals opinions as already being (in Martha’s phrase) “the law of the land,” that suggests that the jurisprudence is set and might not warrant further attention.

1. If you think this always works in lower courts, may I point you to Karl Llewellyn’s discussion of “The Leeways of Precedent”?

A few days ago, I saw this story in the Texas Tribune about a new open-records request about Governor Perry’s traveling security detail. The gist of the Tribune story was that DPS had actually destroyed older records, including all records for fiscal year 2007. (From the story: “Those records include documents that had been the subject of a controversial court case and previous freedom of information requests from news outlets, officials said.”)

This piqued my curiosity because — if those records had, indeed, already been destroyed — then the agency’s big win in the Texas Supreme Court just a few weeks ago might have been in a moot controversy. I wouldn’t want to be the state lawyer who had to explain that one, either to the Supreme Court (if this revelation led to a rehearing motion) or to the trial court on remand.

Now, the Tribune reports that it has been given a clarification:

While accounting records are indeed gone, the agency said Monday that it had erroneously described the extent of the records destruction. The department now says that any records that had been the subject of a lawsuit brought by newspapers trying to get more information about the expenses had been preserved.

That makes much more sense to me, given how open-records requests work. When an agency objects to a request, they are (so far as I understand) supposed to forward the documents to the Attorney General. It would be quite unusual for records in the hands of the AG to be destroyed while litigation is ongoing.

So, the jurisprudential crisis seems to be avoided. The open-records crisis? That’s now for the trial court to sort out.

As blog readers know, the Texas state appellate courts are shifting toward electronic briefs. Unlike the federal system, the Texas rules permit advocates to make use of hyperlinks and encourage the use of internal bookmarks to ease navigation. The focus is on making the briefs more useful to the ultimate readers — the judges and law clerks who will use them to decide cases and write appellate opinions.

Last Thursday, I gave a presentation about electronic briefs with Blake Hawthorne at the UT Conference on State and Federal Appeals. We covered quite a bit of ground for a thirty-minute talk — the basics of how to make these briefs, some survey results from judges and staff members who have been using them for the past year, and some clips of video interviews with Texas Supreme Court Justices on the same subject.

If you weren’t able to attend and want to see the slides, you can download a plain PDF version. Unfortunately, that lacks both the live demos and the video clips. ¹

And as promised, I am posting the full-length interviews with the Justices. You can play them within your web browser using these links. (The audio levels are fairly low, so you may want to grab a pair of earbuds before you hit ‘play’.) The interviews range between about eight and sixteen minutes, but they’re well worth your time if you are practicing in the Texas Supreme Court.

Justice Hecht

Justice Johnson

Justice Wainwright

P.S. I had a little trouble getting these to play in Firefox on the Mac. They seem to play fine in other browsers.

1. There is a much, much larger version that includes the video clips. I can post that later this month if there is interest.