Category: 'Practice Notes'
February 4th, 2010 · Comments Off on A peaceful term (so far) at the Texas Supreme Court
On this blog, I’ve gotten very used to commenting on the dueling arguments between the authors of dissenting and majority opinions, with the occasional new perspective offered by a concurrence.
But I’m now out of practice.
It’s been five months since any Justice authored a dissent or a concurrence to a merits decision of the Texas Supreme Court. (( In those five months, the Court has issued 15 per curiam opinions and 11 signed majority opinions. The most prolific author so far is Justice Green, with 3 majority opinions.
The only dissent disagreed with the Court’s denial of review — which is not a decision on the merits — in Watson v. Newman, No. 09-1066 (docket and briefs), a case about the immunity extended to off-duty policemen. I briefly mentioned it in this longer post about that day’s order list. ))
This is an unusual level of unanimity, and it deserved a mention here, regardless of what might happen with tomorrow’s order list.
Concurrences and dissents are sometimes collectively called “separate opinions,” in which at least one Justice stands apart from the Court to express a divergent view.
Between 2001 and 2009, the Court never had a year in which it issued fewer than 25 such separate opinions in merits cases. The absence of any such opinions so far this year marks a sharp departure from 2008 and 2009, when the Court issued around 50 separate opinions per year. (( I would do the math to extrapolate this year’s projected total, but anything times zero is zero. ))
This might just be the luck of the draw. It might be a natural result if the Court is focusing on less contentious cases while its new Justice gets time to weigh in on more divided ones. Or it might reflect a new trend.
That last possibility would of course be the most interesting for Court watchers. Besides the remarkable unanimity so far this term, the other clue pointing in that direction might be the unusual voting pattern in City of Waco v. Kirman, No. 08-0121 (docket and briefs) — where Chief Justice Jefferson elected not to join the bulk of the Court’s opinion. But, instead of authoring a separate opinion to express his disagreement, he simply joined the single ground in the opinion with which he agreed. (( The voting breakdown in the City of Waco case: “Justice Green delivered the opinion of the Court, in which Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Medina, Justice Johnson, Justice Willett, and Justice Guzman joined as to Parts I–V, and in which Chief Justice Jefferson joined as to Part IV.” )) Of course, City of Waco might just be an outlier. The Chief Justice might have felt that, in this unusual case, his vote could express his view without the need for further elaboration. (( One might infer from his vote that he thought it unnecessary to reach the broader policy questions discussed in the opinion when the narrower, alternative ground discussed in Part IV was available. ))
Tags: Practice Notes
January 19th, 2010 · Comments Off on Interlocutory appeals: Does the Texas Supreme Court have a special role in correcting lower court errors about federal law?
One trap for unwary litigants new to the Texas Supreme Court is the limited authority it has over interlocutory appeals. (( Interlocutory appeals are brought to challenge a trial court order before final judgment, while the case is still pending below. ))
A recent law review article asks if there is a new, implicit category of cases that the Texas Supreme Court can hear in early interlocutory appeals — cases in which the lower court order conflicts with a decision of the U.S. Supreme Court.
[Read more →]
Tags: Practice Notes
December 15th, 2009 · 4 Comments
For a few years, the Texas Supreme Court has made limited requests for PDF versions of briefs. The request was made only for those cases that were chosen for full merits briefing, after making it past the petition stage. Those PDFs proved useful to the Court, and the same PDFs were also made available online for the public, which has been a great resource.
Most counsel complied with the Court’s request. But a significant number of them wholly disregarded the Court’s preference for word-searchable briefs, instead submitting huge, scanned image files of their briefs that proved impossible to work with.
I have been told by some of those scanner-happy lawyers that they chose this method out of concern that someone might otherwise alter their carefully crafted text (a concern that seems unfounded given that the Court has a paper copy). The more candid admitted that they also wanted their signature to come through well on the screen.
With an order issued today, the Court has smartly clarified its previous order. Beginning February 15th, it’s no longer a request. All briefs filed in the Court must be accompanied by a PDF version. And the old method of “just have someone scan the paper copy” won’t cut it anymore.
Read more about the new requirements
Tags: Electronic Briefs · Legal Tech · Practice Notes
November 20th, 2009 · 2 Comments
Today’s Texas Supreme Court order list had something for everybody. The Court:
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decided a class certification issue, resolved a question about landowners’ duties to recreational users of their property, and applied a recent holding about the reasonableness of attorneys fees;
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issued its first “improvident grant” since 2003a rare “improvident grant”;
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granted rehearing in the controversial Exxon well-plugging cases;
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issued a revised opinion in a case about whether business owners can be compensated for lost profits when the government takes their land;
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set four new petitions for argument early next year;
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had two Justices file a dissent from the Court’s denial of review of a petition about the immunity police officers maintain while moonlighting; and
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asked for the views of the Texas Solicitor General on a case about whether cities are shielded from subsequent legal challenges to a city building commission’s determination that a building is a nuisance.
Read more about these orders…
Tags: Order Lists · Practice Notes
September 22nd, 2009 · 3 Comments
The “green book” — the Texas Rules of Form style guide for Texas citations — is up for revision, and its editors at the Texas Law Review want your input.
Comments should be sent to Rex Mann at the law review. His contact information is here. Comments are requested by October 31, 2009.
Some ideas that warrant discussion:
- A way to cite unpublished cases in Texas outside of a paid research service. When not all courts in Texas even buy the same service, it would sure be nice to be able to cite those (precedential) opinions from their web locations. (I wrote before about researching those unpublished opinions online.)
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The future role of Texas’s unique system of subsequent history. The Texas Supreme Court in practice does not use “petition refused” (which would bless the court of appeals opinion as its own), and “petition denied” status does not make the lower court’s decision binding on any other courts. (( In fact, in the modern petition for review system, there’s no way to tell from “pet. denied” what issue was even presented to the Supreme Court, so there’s no way to know the Court was even asked about the proposition of law you’re citing that case for. )) Yet practitioners go through a remarkable amount of effort to pick out just the right flavor of subsequent history. (( The more subtle differences may affect future litigation between the parties actually involved in that case, but they rarely affect the precedential status of an opinion for nonparties. ))
If you have ideas that you want to see explored more on this blog, please put them in the comment threads (or email them to me privately).
Tags: News and Links · Practice Notes
September 4th, 2009 · 2 Comments
Now that the Texas Supreme Court’s 2009 season is over, (( The Court’s year ends in August. We’re now starting on the fiscal 2010 calendar. )) it’s time to start counting up the opinions to see which Justices were most prolific.
I’ve compiled the Texas Supreme Court opinion statistics in a form that lets you drill down to see the individual cases and opinions. (( You’ll also notice the word “preliminary” on my stats. They are not official, and I haven’t yet fully reconciled my figures with the Court’s. ))
Individual Awards
Justice Johnson wrote the largest number of signed majority opinions of the Court, with twelve majority opinions last term bearing his name.
The prize for most “deciding” opinions — a combination of majority opinions and per curiams — goes to Justice Green. He wrote 10 signed and 10 unsigned deciding opinions. (( My thanks to the Court for an early look at the breakdown of per curiam opinions. ))
Justice Willett. wrote the most concurrences — five — all of which were individual separate opinions.
Justice O’Neill wrote the most dissents with six. In four of those cases, Justice O’Neill wrote the dissent in a 5-4 case. In the other two, her opinion had a total of three votes.
Among dissenters, Justice Hecht and Justice Brister were right behind with five opinions.
The largest total number of opinions was written by Justice Brister, who finished second in every major category (10 majorities, 6 per curiams, 4 concurrences, 5 dissents, and 1 opinion dissenting from the denial of review). He wrote 26 opinions overall — one every two weeks.
Please let me know if you see other interesting patterns in these numbers. I’m also working up some ways to look at voting patterns on the Court.
Tags: Practice Notes
I came across a tweet talking about unpublished opinions in Texas and whether practitioners, to be safe, have to use Westlaw and Lexis to search for those opinions.
It cites a legal research blog post titled “Practioners Beware… Research on Westlaw / Lexis is a Necessity in Texas?”, which in turn discusses a St. Mary’s Law Journal article critical of this change to the Texas Rules of Appellate Procedure:
The amendment is flawed because it makes memorandum opinions precedential even though those opinions are only readily available on Westlaw and Lexis. This has occurred in an era when only 60% of attorneys use fee-based online research services (i.e., Westlaw or Lexis) for state case law research.
It’s true enough that you need to go online to find these opinions, since they are not collected and bound in paper. But you don’t need to pay to do so. Texas already publishes slip opinions online. If these slip opinions are the only reason you’d think of paying for Westlaw/Lexis, (( My view: What’s with a two-year service contract for using a website? If they want a two-year contract, they should at least give you a discount on an iPhone. )) this free alternative should make you happy.
Search Thirteen Courts of Appeals in One Box
Texas has fourteen courts of appeals. Luckily, the opinions in thirteen of those (all but Dallas) can be quickly searched in Google by including the following operator within your search query:
site:courts.state.tx.us/opinions
If you want to focus your results on a particular court, such as the appellate district your case is in, just add that to the operator. For example, “site:3rdcoa.courts.state.tx.us/opinions” restricts the search to opinions coming out of the Austin Court. I actually find this far less frustrating than trying to properly scope these searches in Westlaw, for example. (( Did Westlaw ever fix the problem where you couldn’t limit your results to just El Paso or Fort Worth because those courts had two words in their names? That became amazingly frustrating. ))
Once you get the hang of the “site:” search operator, Google searches can be a little (more) like magic.
Dallas Requires an Extra Step
Is it perfect? No. Texas has one outlier court of appeals, whose website is unlike all the others. That requires one extra search from you. The Dallas Court’s opinions can be searched at this link: (( The Dallas Court does not let Google index its opinions. So, the only way I know to search those opinions is using the court’s own website. )) http://www.5thcoa.courts.state.tx.us/search_o.htm
So, two searches can quickly cover all fourteen courts. (( The riddle is how to cite these cases once you find them. I wish Texas had an accepted non-commercial citation format. But this is a great way to find them. ))
I agree that would be nice if there were a unified search box for these opinions, but one could probably be built pretty quickly out of spare parts, a little scripting glue, and the existing Google index. If there is interest in a project like that, I’d be happy to help. I also have strong opinions about how the search results could be more useful to practitioners.
And the Texas Supreme Court?
The Texas Supreme Court doesn’t issue unpublished opinions, so it’s not really affected by this rule. But you may still want to search its opinions electronically.
The Texas Supreme Court’s official website offers nice search options. For certain kinds of searches on currently pending cases, you can use my own website devoted to tracking the Texas Supreme Court.
But there are times you want to do a really quick search and don’t want to walk through the menus.
The same Google trick can help here. The best search operator to use is “site:supreme.courts.state.tx.us/historical”, which captures written opinions as well as the order lists in which petitions are granted or denied.
Don’t want to remember that? You’re welcome to use the “Search Opinions and Orders” box at the far left of this blog page. Just enter your search terms, and this “site:” trick is done for you.
Tags: Legal Tech · Practice Notes
May 26th, 2009 · Comments Off on What Do Questions at Oral Argument Mean?
In Monday’s paper, Adam Liptak of the New York Times wrote about some recent studies about predicting the outcome of a U.S. Supreme Court case based on oral argument.
The lesson? The side asked the most questions tends to lose.
Ongoing studies hope to learn whether the tone of the questions helps to predict with even more accuracy.
Those studies have been limited to the U.S. Supreme Court, which may have an argument dynamic different than other courts. But the conclusion is really though-provoking.
Some of the people quoted in the article give advice such as “keep your head down” and to sit down earlier, just to avoid getting questions. I think that confuses cause and effect. (( This study will not settle the eternal debate about how much oral argument matters. Believing that the written briefs almost always determine the outcome of a case is perfectly consistent with this study, since the briefs are what will inform and motivate the questions prepared for argument. )) The sheer volume of questions does not cause the Court to rule against a side — and, if it did, I suspect the answers would be to blame, not the questions.
Rather, the questions asked by the Court reveal some of the Justices’ concerns and thinking about a case. If one side’s position elicits far more poking and prodding, then it was probably the weaker side on the briefs, too. An advocate sitting down earlier, or avoiding the questions already on the Justices’ minds, won’t help.
Tags: Practice Notes