This was in some sense an update of the talk we made to the Austin Bar appellate section in 2010. Then, we had focused on the unique 2005-2009 Terms of the Court, during which there was no turnover of Justices. The new presentation looks at the voting patterns as the Court’s membership has changed from 2010 to the present — including some of the diagrams of voting patterns that were so popular before.1
This time around, I also included two new kinds of graphs: (1) a look at how often each Justice tends to join in concurrences or dissents; and (2) a time-series showing how each Justice’s overall rate of agreement with the judgment moves year to year, and relative to similar peers.
The last section of the talk discussed amicus practice. The slides that seemed to make the biggest impression were the last handful, which show the correlation2 between response-request rates, briefing-request rates, and grant rates when at least one amicus brief is in the file.
If anyone is interested in diving into that raw data, I’d be happy to share the scripts that generated slides 34 and 35. [↩]
Update: I’ve been asked if it’s correlation or causation. These slides are definitely correlation. They do not definitively answer whether amicus groups happen to like the same sorts of cases that interest the Justices, or whether the amicus briefs inform the Justices’ views of the cases. That, however, is a subject that came up in last week’s “Evening with the Supreme Court” event, which I’ll write more about soon. [↩]
That was the title of a panel that I was asked to participate in last week at UT’s Conference on State and Federal Appeals here in Austin.
The other two panelists were Blake Hawthorne (the Clerk of the Supreme Court of Texas) and Rich Phillips (of Thompson & Knight). We spoke about some practical ways to use an iPad to get actual (and, yes, even billable) appellate work done.
Blake focused on ways to read and annotate PDFs, a topic of particular interest to judges adapting to Texas’s new e-filing system. Rich focused on ways to work with appellate records and do legal research. And I focused on how to use the iPad as part of the writing process.
Our presentation included live demonstrations and some video captures of using the iPad. The version below does not have either, but we have included a few screenshots to give you a flavor of what we discussed.
At popular request, I’ve published a new set of voting charts for the Texas Supreme Court. These charts are tied directly to my court-tracking database, so they can be kept current.
If you just want a general sense of the voting dynamic, then the top-level percentage totals are what you need. But as an advocate, I want to know which types of cases and legal arguments led two Justices to disagree. To accomplish that goal, my system allows you to drill down and see the specific opinions that led to each set of agreements and disagreements.
As a bonus, this also makes my math transparent. By clicking through, you can see exactly which cases were rolled up to compute each percentage in the chart (and, I hope, will let me know if you see any data points that need to be adjusted).
If you want to change the time period or focus of the chart, just pick one of the options at the top of the main page:
Those options show the pattern I look to most often: whether each pair of Justices agrees about the judgment in those cases where at least one Justice dissented.
Using that set of criteria, the pair of Justices with the closest voting record since September 2011 is Justice Johnson and Justice Wainwright at 84%. Focusing just on current Justices,1 the closest pair is Justice Green and Justice Johnson at 70%.
Over the same time period, the pair of Justices who voted least often for the same judgment in divided cases was Justice Johnson and Justice Lehrmann, at 29%.
One of my favorite features of these charts is that you can click through to see a complete breakdown of how each individual pair of Justices voted — one a case-by-case basis:
From the detail pages, you can click on the words “Majority” or “Dissent” under each case to jump to the specific opinions about which they agreed or disagreed.
Who has written which opinions?
Each year, the OCA publishes a leaderboard of how many opinions each Justice has written, broken down by type of opinion.
I have a similar chart that shows the current count (through last week’s opinions): Texas Supreme Court opinions by Justice. You can click on the values in the chart to reach a backup page listing which specific opinions fall in each category.2
So far, the 2013 Term has not been very contentious, with just 5 separate opinions in the partial term (just over seven months so far). By comparison, the full 2012 term had 26 separate opinions and the 2011 term had 45 separate opinions.
One factor, no doubt, is that the Court is still absorbing its two newest Justices. We’ll have to wait to see how the pattern plays out for the rest of the term. (These chart will continue to be updated as more opinions are released.)
Who has joined the opinions written by each Justice?
You can think of this third category of chart as a combination of the first two.
It shows how often each Justice joined the opinions written by each other Justice. Each row on the chart shows the opinions authored by a particular Justice. Reading across, you can see how many of the opinions were “solo” separate opinions and how many were joined by each of the other Justices with which they sat on that case.
Using the controls at the top of the chart, you can also narrow its focus just to dissents, just separate opinions (concurrences and dissents), or just deciding majority opinions.
The second- and third-closest pairs also involved Justices who have stepped down: the pair of Justice Wainwright and Justice Guzman was ranked second, and the pair of Justice Medina and Justice Lehrmann was in third. [↩]
OCA does have one data set that outsiders don’t: knowing which per curiam opinions were penned by each Justice. For previous years, I have updated my chart to display the number of per curiam opinions that OCA has later reported were written by each Justice, but the backup pages don’t try to guess who wrote each of the per curiams. [↩]
Last fall, I mentioned in passing the Legislature’s new requirement that the Court compile and submit a report about how each Justice has met the Court’s internal operating deadlines.
The Court has released the 2012 version of this report.1
It includes the usual information, such as that only seven argued cases were carried over in August to the new fiscal year that started in September (the same count I reached here),2 as well as a breakdown of how many opinions each Justice wrote:
As with the OCA reports, this reveals the count of per curiam opinions authored by each Justice. Last year, there was only one outlier. The Chief Justice wrote 9 per curiams, with the other Justices all writing between 3 and 5 per curiam opinions.
The new glimpse into the Court — the one demanded by the Legislature — is the “Number of Missed Internal Benchmarks” chart, broken down by Justice:
For 2012, five of the Justices had a perfect score on the internal benchmarks. The outlier was Justice Hecht, who was recorded as missing seven of them.3
For context, the report emphasizes that “the missed benchmarks did not hinder the Court’s or any Justice’s output in fiscal 2012. Of the thirteen benchmarks missed, only two items remained outstanding at the end of the fiscal year.” (page 3)
The Court and the Legislature
It is hard to read the report without thinking about the larger questions of the Court’s relationship to the Legislature. In the past, the Legislature has shown interest in why the Court’s decisions can take time, culminating in this more detailed reporting requirement.
And since the last legislative session, the Court has tangled with several direct actions brought under a special statutory provision requiring a decision within 120 days. In the first of those, IN RE ALLCAT CLAIMS SERVICE, L.P. AND JOHN WEAKLY, No. 11-0589
, Justice Willett’s separate opinion (joined by Justice Lehrmann) raised separation of powers concerns about that time limit and about legislative intrusions into the internal processes of the Court.
The language here is not so direct, but it does offer pragmatic reasons why particular deadlines might be missed in pursuit of “thorough and accurate declarations of law.” (page 2) The Chief Justice’s concluding paragraph promises that, “[i]n the coming year the Court will continue to handle cases efficiently, but not prematurely.” (page 4)
I do not recall seeing a public release of the 2011 version, which would likely have been due the same day that I wrote that blog post mentioning it. [↩]
As of today, all seven of those remain pending. They are the cases that (today) are highlighted on my list of outstanding argued Texas Supreme Court cases. You can click on the “Date Argued” heading to resort that list. [↩]
For fiscal 2011, only two Justices met all the benchmarks. [↩]
The Rules Advisory Committee is meeting today and tomorrow. Among the items for discussion: a proposal to switch the Texas appellate courts from page limits to word counts.
You can check out the proposal embedded below. The core elements are:
a word count of 4500 for petitions, the same for responses, and 2400 for petition-stage replies
a word count of 15,000 for appellant’s briefs, the same for appellee’s briefs, and 7500 for reply briefs
a word count of 4500 for motions for rehearing
The proposal also would change the font requirement, increasing the size of body text up from 13-point to 14-point type. Footnotes would also have a larger minimum size, taking the leap from the painfully small 10-point up to 12-point type. 1
Font sizes and e-filing
Although the headline is the “word count” requirement, to the Justices, the big difference is likely to be this change to font sizes. With mandatory e-filing, they are reading many more documents as PDFs directly on screens of varying sizes. A larger font is likely to make this easier, especially for complex PDFs on a device like the iPad.
By adopting a word count, the Court is trying not to penalize counsel for using this larger font size (or even slightly larger sizes, if they make sense in your chosen font).
Comparing the word counts to the old page limits, the Court has adopted a fairly rigid 300 words/page conversion. Several attorneys have told me that they think this new formula will reduce their effective space in short documents, such as petitions for review. But it does not look like the proposal has changed to address those concerns. 2
It has been a little while since I have pushed a federal brief up against its word limit. I suspect that I’ll frequently hit the limit on short Texas briefs under these proposed rules, such as petitions and motions for rehearing. So I’m looking for tips. How do you track the word count, live, as you write?
The wrinkle is that the official court count excludes lots of words that your word processor wants to count — such as the front matter, the issues presented, and statement of jurisdiction. To take the final count for your certificate of compliance, you can highlight the body text and precisely measure the count for the chosen selection. But repeating that process while editing is tedious.
What are some practical approaches that I can borrow?
These are still framed as minimum sizes. I often used a 13.5-point font size under the old rules. [↩]
Different types of briefs may naturally have different word counts per page, depending on whether they are about facts, policy, or complex legal issues. And then there is the wild card of how inline citations to cases show up as distinct words in the count. [↩]
Last Thursday, our local Austin Bar appellate section and the State Bar appellate section co-hosted the 2012 edition of “An Evening with the Texas Supreme Court,” which featured a panel discussion with seven members of the Court.
Here are a few notes that I jotted down:
The importance of studying what issues might interest the Court
The first few questions were about the Court’s petition practice. In Texas Supreme Court practice, the parties file a short petition for review raising each issue being brought to the Court (which can be just one or two, or in some petitions can be many issues). If the Court wants to hear more, it will order full briefing on the merits in support of the petition (before deciding whether to grant review). The Court then grants some of these petitions for oral argument.
One question to the Court was why it did not specify which issues it wanted to hear more about when it was requesting briefs. A second asked why, when the Court granted review and set the case for argument, it did not tell the parties which areas the Court thought were important to address at oral argument.
Both discussions boiled down to the same thing: Advocates have to be responsible for the issues they choose to present. The Chief explained that, when advocates have presented a large number of issues, there are often ongoing disagreements among the Justices about which issues matter. If you asked what to focus on at oral argument, you “might get nine areas of importance.” Justice Guzman called the choice of what to emphasize a “strategic call” by the attorneys as advocates.
The panel also noted a strategic downside to advocates raising “too many issues.” Because the Court has discretionary review, it may decide to wait for a petition that presents the truly important issue directly rather than have to confront it buried within a maze of other issues. (This echoed how the Court responded two years ago, when the Chief explained how a petition that raises additional issues can undermine the Court ever reaching the key issues that might need the Court’s clarification.)
To summarize: Choosing which issues to raise is the job of the advocate, and it should be done with some strategic thought about how the issues relate to each other and to pending issues on the Court’s docket.
CVSGs and other amicus briefs
On the subject of amicus briefs in general, Justice Johnson noted that some “have made a significant difference in my thought process.” He also emphasized that a good amicus brief can add credibility to a petition’s assertion that a case has broad importance, especially if it offers a “deeper perspective.” Justice Medina emphasized that filing an amicus brief earlier in the process can ensure that the Justices have a chance to absorb it before casting their votes.
With regard to the Court’s CVSG practice (in which it asks the Texas solicitor general to weigh in), the Chief noted that the Court prefers to issue those requests in advance of oral argument so that the solicitor general has the chance to request argument time.
Electronic filing and e-briefs
The panel was also asked about the new Texas e-filing system and how the Justices use e-briefs.
The overall response was that the electronic versions were much more convenient (the Justices no longer need to “lug around” boxes of briefs to continue working from home or as they travel). The members of the Court have been issued iPads, and they are using them to read briefs.
The Court also discussed a proposed change to the Texas Rules of Appellate Procedure that would move to a word count rather than a page limit for briefs. Justice Hecht noted that one goal was to enable the advocates to use larger fonts (“as some Justices prefer”), and a second goal was to allow advocates to embed exhibits or helpful items within briefs without running afoul of page limits. (There was some back-and-forth about whether the currently proposed word limits are too low. If you have a view about this, you should probably speak up now.)
Pet peeves and breaking tone
There wasn’t much discussion about pet peeves, but two of them came up.
Justice Johnson noted the importance of not over-claiming the record. He finds it actually “difficult to read” briefs once he realizes that the two sides are making diametrically opposed representations about the record. He sometimes will turn to the court of appeals’s account and find that it doesn’t match either side’s presentation. (This echoes a concern he raised at a panel last year.)
Justice Medina mentioned motions for rehearing as a concern. He said that advocates are “probably not going to beat the Court down” by the force of their rhetoric in a rehearing motion. This matches what the Justices have often said about rehearing practice.
Both of those pet peeves echo things we’ve heard before, but apparently the message has not been received by all corners of the bar. The advice might be this: If you find yourself hitting the exclamation mark on your keyboard, it might be time to call an appellate lawyer who can bring a different perspective.