Features for March 2014

Welcome to the March 2014 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Section.

JUDICIAL INTERVIEW SERIES
Justice Marc W. Brown: A Man of Many Interests by Justice Laura Carter Higley

THE CONFEDERACY'S COLLAPSE, JUNETEENTH, AND HOUSTON'S RECONSTRUCTION
David Furlow discusses some of the ramifications of the collapse of the confederacy on Houston's judicial system.

REWRITE THIS SENTENCE
Justice Bill Boyce, 14th Court of Appeals, picked the wrong week to remand for proceedings consistent with the opinion.

DID YOU KNOW . . . ?
by JoAnn Storey

APPELLATECH
Using Styles in MS Word, Part Two: Derek D. Bauman concludes how to make a well-formatted brief with paragraph styles.
The End Is Nigh (for Windows XP Updates): If your computer operating system is Windows XP, you need to be aware than Windows will soon stop supporting it.

CASE UPDATES FOR DECEMBER 2013 AND JANUARY AND FEBRUARY 2014
Case updates for the First and Fourteenth Courts of Appeals
by John Barnes and Andrew Nelson, Wright & Close, LLP

Justice Marc W. Brown: A Man of Many Interests


by Justice Laura Higley, First Court of Appeals

Justice Marc Brown, one of the two new justices on the 14th Court of Appeals, is a man of fascinating contrasts. He is a graduate of the University of Texas and an avid Longhorn fan, yet sits on the Texas A&M College of Liberal Arts Development Council. He  runs grueling half marathons and collects delicate snow globes. He is a life-long hunter yet is the board secretary of Frisky Paws Animal Rescue. This is a man you definitely want to get to know!

Justice Brown, the youngest of four boys, grew up on a farm that sat atop a hill six miles outside of Taylor, Texas in Williamson County. As a child, he hunted dove and quail and fished on the 36 acre lake that was part of the approximately 200 acre farm. He was raised by a father who was a career public servant as well as a World War II Marine combat veteran, and a mother, who he describes as the “hardest working homemaker you’d ever meet.” He reports that it was there that he and his brothers “learned very practical lessons and the values of faith, family and hard work.”

From Taylor he went on to the University of Texas at Austin, just as his three older brothers had done before him. It is clear that he took the value of hard work to heart, as he graduated from college in three years and, then, turned around and graduated from the University of Houston Law Center in two-and-one-half years.

Legal Career

Justice Brown credits his oldest brother Mike and Mike’s infectious love for the law and history as the inspiration for his becoming a lawyer. While he laughs, remembering that Mike described himself as practicing law of the dead -- oil and gas and probate law -- that is not the legal path that Justice Brown pursued. Instead, after an internship there during law school, Justice Brown joined the lively Harris County District Attorney’s office.

Joining the DA’s office proved to be a very productive career choice for Justice Brown. On the first day of the job, he met Susan, who he describes as the “love of his life.” They married approximately one-and-a-half years later and have been married more than 25 years. As well as finding the love of his life at the DA’s office, he reports that “it was there that my love for the law fully blossomed.” During his more than 22 years as a prosecutor, he became increasingly fascinated with procedure, evidence, and, most of all, the Fourth Amendment to the United States Constitution. During his time working in the major offenders division, Justice Brown gained a depth of experience counseling with police officers on strategies for securing search warrants and conducting legal investigations and searches. In addition, he gained valuable instruction from “his good friend and mentor” Ted Wilson, who Justice Brown describes as the “guru on the Fourth Amendment.” Justice Brown continues to travel the United States teaching judges, attorneys and police officers on the subject.

Judicial Career

In the Spring of 2010, Judge Strickland announced his plans to retire from the 180th District Court bench. Although he was asked to consider applying for that bench, Justice Brown was hesitant at first. By that time, his wife, Susan, had been a judge on the 185th District Court for approximately 10 years, and he was somewhat reluctant to establish a two-judge family. However, he eventually warmed to the idea and was appointed to the 180th District Court by Governor Perry in the summer of 2010 and elected in that November.

Thus, in late summer of 2013 Justice Brown began securing the signatures to run for reelection and had completed his petitions by September. However, the Governor had other ideas for his career and appointed Justice Brown to the 14th Court of Appeals on October 7, 2013. Justice Brown likes to joke that that timing gives him seniority over Justice Ken Wise by about 20 hours.

During his investiture, Justice Brown shared the many guiding principles that he brought with him from the trial bench. They are as follows: “A judge should work hard because that judge is paid to work. A judge should learn something from every case that he or she presides over. A judge should not create law or legislate from the bench. A judge comes to the bench with no agenda, hidden or otherwise. A judge must be willing to listen to both sides and be educated. A judge knows that no two cases are the same. A judge realizes that there are no small cases, only small records and a judge should do what he or she thinks is right based on the law and the evidence in the record.” What a great box of valuable tools to carry to the appellate bench!

When asked about the differences he sees between the trial bench and the appellate bench, Justice Brown responded that when the trial is over, you are done for the day. On the other hand, on the appellate bench, there’s always something else to do. He also commented on how much he is learning daily, which, having earned a reputation on the trial bench as the bookish, research-oriented judge, should suit him well. In addition, he expressed surprise at the number of summary-judgment issues he considers regularly. He had expected to review more trial records than he has seen thus far. Finally, he colorfully and accurately describes the transition between the two courts as moving from “the referee on the playing field to what is in essence the replay booth upstairs.”

Justice Brown particularly enjoys oral argument, which should be very good news for practitioners. He says that, when lawyers personally advocate, they provide valuable insight into the points that they consider important. He considers oral argument a great opportunity for a lawyer to highlight the crucial issues. With respect to advice for participants in oral argument, he stresses the importance of thorough preparation and the willingness to answer the questions that are asked. He also comments, however, that it is perfectly acceptable to respond that you are not able to answer a particular question if that is the case.

Personal

As mentioned earlier, Justice Brown has been married to his wife Susan for over 25 years. They have two daughters, Amy and Sara, who he says “know more about how judges are elected in Texas than any other college kids you have ever met.” With respect to higher education, the Browns are, indeed, a family divided. While Justice Brown is a graduate of UT, Susan is a Texas A&M graduate. Amy is a senior at A&M and Sara, a junior at UT. When UT and A&M meet on the playing field again, sitting with the Browns will be a memorable experience!

As suggested in the initial paragraph of this article, Justice Brown is a man of many interests. In addition to running half marathons and collecting snow globes (he has over 300 on display in his office) he is a talented photographer, having worked in a photo lab between undergraduate school and law school. He specializes in black and white photographs of architecture and landscapes. He is also a college football junky, a fan of music of all kinds -- with rock and Bruce Springsteen at the top of his list -- and a devoted reader with a special interest in biographies and political history novels. Where does he find the time?!

When I inquired about the major mentors in his life, he immediately mentioned two, one in his personal life and one in his professional life. He first responded that his Dad had been a huge influence in his life. Justice Brown related that his father had been a WWII combat Marine in the Pacific, as well as a farmer and lifelong public servant. Then, when Justice Brown’s parents were in their 50s, his mother contracted early Alzheimer’s. His father retired and became her caretaker exhibiting the “patience of a saint.” Justice Brown, thus, remembers his father as a model of character and loyalty.

In his professional life, Justice Brown points to retired District Attorney Johnny Holmes as his mentor. He praises Holmes’s immense institutional knowledge after working his way up through the DA’s office. In addition, he describes Holmes as a man who could stand by his decisions and stand by you, never asking you to do what he was not willing to do himself.

I began this article describing Justice Brown as a man of fascinating contrasts. As I complete this article, I conclude, instead, that he is a man who has achieved an enviable balance in his life between the personal, the professional and the spiritual. Hence, I repeat, this is a man that you definitely want to get to know.

The Confederacy’s Collapse, Juneteenth, and Houston’s Reconstruction

by David A. Furlow

In The Second Coming, in the aftermath of the First World War, Irish poet William Butler Yeats wrote about the end of an age:
Turning and turning in the widening gyre
    The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
    Mere anarchy is loosed upon the world....
Yeats’ lines describe Houston between June 1 and June 19, 1865, when Houstonians confronted the blood-dimmed tide of anarchy as the Confederacy collapsed around them.

By early 1865, it was clear to many Texans that the Confederacy was collapsing. The economy lurched toward barter exchange because the local elites knew slavery was about to end and Confederate money lacked any value. Wealthy planters faced the imminent loss of the slaves that were their principal form of wealth, while slaves faced the prospect of living lives without any savings to help them through the post-war era. See MICHAEL ARIENS, LONE STAR LAW: A LEGAL HISTORY OF TEXAS (2011), at 36-37. Confederate defeats in Georgia, Virginia, and Tennessee during 1864, as well as President Abraham Lincoln’s re-election, convinced many that the Confederacy’s cause was lost.

General Robert E. Lee’s surrender of the Army of Northern Virginia at Appomattox, Virginia on April 12, 1865, and General Joseph E. Johnston’s April 26, 1865 surrender of the Confederacy’s largest remaining army at Bennett Farm, North Carolina, convinced most Southerners that the war was coming to an end. See, e.g., JAY WINIK, APRIL 1865: THE MONTH THAT SAVED AMERICA (2006); Ralph A. Wooster, Civil War, HANDBOOK OF TEXAS ONLINE, http://www.tshaonline.org/handbook/online/articles/qdc02 (accessed March 17, 2014).

Nevertheless, although Lieutenant General Edmund Kirby Smith, commander of the Confederate Trans-Mississippi Department, vowed to carry on the fight for Southern independence. On May 13, 1865, mounted Confederate forces under the command of Brigadier General James E. Slaughter, commander of the Western Sub-District of Texas, Colonel John Salmon “Rip” Ford, commander of the Seventh Texas Cavalry, and Lieutenant Colonel George H. Giddings, commander of the Texas Cavalry Battalion defeated an invading unit of Union infantry at the Battle of Palmito Ranch, near Brownsville, Texas, in the last land battle of the Civil War.

After the battle, Colonel Ford discovered that Confederate forces throughout the South were following Robert E. Lee’s example in surrendering to Union forces and going home. See Jeffrey William Hunt, Battle of Palmito Ranch, HANDBOOK OF TEXAS ONLINE, http://www.tshaonline.org/handbook/online/articles/qfp01 (accessed March 17, 2014).

Texans could no longer deny that the Confederacy was collapsing around them. Like Iraqi soldiers in the aftermath of Baghdad’s fall, many Confederate officers and soldiers disbanded and headed for home. See EDWARD T. COTHAM, JR., BATTLE ON THE BAY: THE CIVIL WAR STRUGGLE FOR GALVESTON (1998), at 182. In late May and early June, 1865, most of the remaining Confederate soldiers in Houston abandoned their posts, seized any governmental property they could find, and divided it among themselves. See COLBERT NATHANIEL COLDWELL, COLBERT COLDWELL’S QUEST (unpub. ms., 2014). Law enforcement officers under the command of the Confederate Provost Marshall fled Houston for the countryside. See Ralph A. Wooster, Civil War, HANDBOOK OF TEXAS ONLINE, http://www.tshaonline.org/handbook/online/articles/qdc02 (accessed March 17, 2014).

Yet some Houstonians sought to preserve the force of law, as opposed to the law of force. James A. Baker, a veteran of the Confederate Army elected in 1862 to serve as a Harris County District Court Judge, aimed to make the transition from one era to another as orderly a succession of power as possible. See J. H. Freeman, Baker, James Addison [1821-97], HANDBOOK OF TEXAS ONLINE, http://www.tshaonline.org/handbook/online/articles/fbacs (accessed March 17, 2014).

Taking quill in hand, Judge Baker added one last entry in the Seventh Judicial District Court’s minutes during the twilight of the Confederacy:
At an early date of the present term, it was announced that an order would be made to call for trial at the next term all civil cases filed since January, 1862. But since then events in the history of the country have transpired which render it unnecessary to limit the call to any particular portion of the docket. It is therefore ordered that at the next term of this Court, the civil docket and the criminal, will be called for trial and disposition as in ordinary times.

See Mark Davidson, The Civil War and Reconstruction in Harris County’s Only District Court, 33 HOUSTON LAWYER 42 (Nov./Dec. 1995) (emphasis supplied), quoting MINUTES OF THE 11TH DISTRICT COURT, Vol. K, at 182. Judge Baker then left the bench and retired to private practice.

James A. Baker’s last minute entry as Judge of the 7th Judicial District Court, June 1, 1865. Photograph of the Minutes in the Eleventh Judicial District Court by David A. Furlow.

A native of Madison County, Alabama born near Huntsville on March 3, 1821, James A. Baker was the last district court judge in Harris County to serve under the Confederacy. The court’s docket had remained inactive from 1861 to the spring term of 1865 because of the war, so only five criminal cases and no civil ones were tried in Harris County. In Texas, the transition from the Confederacy to Reconstruction was anything but “ordinary.” Slavery was dead, federal troops occupied Texas, and an amended federal constitution protected the constitutional rights of former slaves for the first time.

Notified of his removal from office in June 1865 by Reconstruction Governor A. J. “Colossal Jack” Hamilton, a Unionist and Republican, Judge Baker passed on his court to Governor Hamilton’s appointee, Judge Colbert Coldwell. When Judge Baker turned over the Seventh Judicial District to his Reconstruction successor, Judge Colbert Coldwell, the jurisdiction of the Seventh Judicial District Court (later renumbered the Eleventh Judicial District Court) encompassed Galveston, Houston and Huntsville, as well as the rich bottomlands of the Brazos and Trinity Rivers in the original Stephen F. Austin Colony. See JAMES L. HALEY, THE TEXAS SUPREME COURT – A NARRATIVE HISTORY, 1836-1986 (2013), at 23.



Portraits of Harris County Judicial District Court Judges Peter W. Gray, James A. Baker, and Colbert Coldwell now hanging on the back wall of the Eleventh Judicial District Court of Harris County, photographed by David A. Furlow, March 2014.

Judge Baker’s successor, Harris County District Court Judge Colbert Coldwell, was not a Confederate but a stalwart Union Man. A native of Shelbyville, Tennessee, he went west with his uncle in southwestern Missouri along the Santa Fe Trail, following the path blazed by Kit Carson. See Colbert N. Coldwell, Setting the Record Straight: Colbert Coldwell’s Quest for Justice, 3(3) TEX. SUP. CT. HIST. SOC. J. 22 (Spring 2014), at 23-24, http://www.texascourthistory.org/documents/TSCHS_Journal_Spring_2014.pdf (accessed March 17, 2014); COLDWELL, COLBERT COLDWELL’S QUEST, at 32–55.

After the end of the Mexican War and further adventures in New Mexico, Coldwell “read” law, worked as a merchant, married, and served as a delegate to the 1856 Democratic Convention. Coldwell and his family to Mansfield, Texas, in 1859, and campaigned in the 1860 presidential election for Stephen Douglas, the Northern Democratic candidate. See Coldwell, Setting the Record Straight, at 23. When the Civil War divided Texas and the nation, Coldwell refused to join the Confederate Army and upheld his strong Unionist principles in the face of strident opposition. Id. at 23-24. Texans who brooked no support for the Union incarcerated him for nine months in 1864 and 1865. Id. at 23-24.

So it came to pass that Judge James A. Baker entered the last entry in the Minutes of the Seventh Judicial District Court on June 1, 1865, in anticipation of his Court’s return to “ordinary” times. Extraordinary times followed. Less than three weeks later, on June 19, 1865, Union general Gordon Granger landed in Galveston, Texas’ largest city, and issued General Order Number 3. See HAILEY, THE TEXAS SUPREME COURT, at 75-76. General Granger’s proclamation read, in pertinent part, as follows:
The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.

See Teresa Palomo Acosta, Juneteenth, HANDBOOK OF TEXAS ONLINE, http://www.tshaonline.org/handbook/online/articles/lkj01 (accessed March 17, 2014). Over a quarter million slaves celebrated their new-found freedom on a day later known in Galveston, Houston, and elsewhere as “Juneteenth.”

In August 1865, Governor Hamilton appointed Coldwell to replace Judge James Baker and serve as Judge of the Seventh Judicial District. Judge Coldwell discharged his responsibilities without rancor and assisted his predecessor judges, pro-Confederates James A. Baker and Peter W. Gray, to renew their law licenses, leading to their formation of the Baker Botts law firm. Id. at 24-25. See Thomas W. Cutrer, Gray, Peter W., HANDBOOK OF TEXAS ONLINE, http://www.tshaonline.org/handbook/online/articles/fgr25 (accessed March 17, 2014).

On November 27, 1865, recently-appointed Judge Colbert Coldwell made the promise of Juneteenth a reality when he made it clear how the Civil War had changed Texas forever:
Gentlemen:

You have been duly elected, empanelled and sworn as grand jurors, to inquire within and for the county of Harris, and it is now incumbent upon me to give you in charge such matters as may come before you.

And here allow me to express the hope, that must be felt by every good citizen, that you enter upon the work assigned to you with a high appreciation of the solemn obligation you have just assumed, and an invincible determination to do your whole duty.

During the late unhappy strife, it may truly be said that vice and virtue were alike cut loose from their marriage; nor need this excite surprise with those who are at all acquainted with the workage of the human heart, for war ever develops the rudest passions of our nature, and without remorse stifles alike the voice of private and of public justice.

But now that the national authority is fully restored, and peace has again asserted her mild dominion---to Statesmen appropriately belong the duty of restoring our State to her rightful relations to the Federal Government. Yet we should not forget, but steadily bear in mind, that upon the juries of the country—grand and petit, devolves the not less arduous task of bringing order out of chaos, by a firm and impartial administration of the criminal laws of the land.

Individual acts of violence and injustice never fail to shake the just and generous mind. But when crime raises his brazen front and is passed over without punishment, it is a blow to the vitals of the State. From necessity our people derive their ideas of justice and of the law from the manner in which it is administered by legally constituted authorities of the land; and when any but the lawful tribunals interpose, and take the administration of law out of its regular channels, outrages, riots and murders will occur, at which an enlightened humanity recoils. “In the investigation of matters that may come before you, the question of who are amenable to punishment and who (are) competent witnesses, must necessarily arise. They must be met as we would any other question, in a manly, truth loving and truth seeking spirit.

The civil war which has recently terminated involved the destruction of the institution of slavery in this State, and swept away with it those distinctions, both as to protection and liability to punishment, which hitherto existed between whites and blacks. Hence the late slaves—now freedmen—and that class denominated “free persons of color,” stand upon terms of perfect equality with all other persons in the “penal code.”

This greatly enlarges the scope of your enquiries, which will now embrace all persons who may have violated the criminal laws of the State, and are in contemplation of the law capable of committing an offence. It is logical and necessarily follows that persons of African descent are competent witnesses where any of that race are parties. Though hardly deemed necessary, yet, to avoid misconstruction, it is added that you are, as in all other cases, the exclusive judges of the weight of evidence and the credibility of the witnesses.

The reason of their exclusion heretofore, it is now believed, has ceased to exist. It was because they were slaves, and descendants of slaves, that it was thought it would have been hazardous to the tenure by which they were as property, to permit them to testify where the whites were involved. And here an axiomatic principle, as old as our system of jurisprudence comes to our aid. “When the reason of the law fails, the law likewise fails.”

I have thus very briefly stated some of the logical consequences that have flowed from the abolition of slavery. As officers of this court, it does not become us to discuss the rightfulness or wrongfulness of the act. But simply to act upon the grand fact that is patent to all. The tree having been cut up, by the roots, it would be idle to suppose that its branches could still flourish.

See THE HOUSTON TELEGRAPH (Nov. 28, 1865); Coldwell, Setting the Record Straight, at 24-25. See also Carl H. Moneyhon, Reconstruction, HANDBOOK OF TEXAS ONLINE http://www.tshaonline.org/handbook/online/articles/mzr01 (accessed March 17, 2014).

Judge Coldwell then devoted the extraordinary time, six days a week, from Monday through Saturday, to work through a docket of disputes that had arisen over the previous four years of the Civil War. He protected the rights of freedmen charged with criminal offenses and did his best to make a smooth transition from the Confederacy to Restoration Texas.

Judge Colbert Coldwell thus joined his predecessors, Judge Peter W. Gray and Judge James A. Baker, in striving to expand, as well as to preserve and protect, the rule of law in Texas. When it seemed that the center could not hold, and when things fell apart, a brave lawyer stepped forward to serve as judge and to join other Houston judges to ensure that mere anarchy was not loosed upon the City of Houston and Texas’ citizens.

Rewrite This Sentence


by Justice Bill BoyceFourteenth Court of Appeals

One of the best bits in the 1980 disaster spoof “Airplane” features Lloyd Bridges.

While officials huddle in the control tower debating how to save the stricken aircraft of the movie’s title, Bridges appears as tower supervisor Steve McCroskey in a series of cameos. McCroskey gradually becomes unhinged as the peril mounts and the pressure intensifies.

With each appearance, an increasingly agitated McCroskey observes: “Looks like I picked the wrong week to give up . . . .” The list of vices he unwisely has given up this week starts with smoking, moves to drinking, and goes downhill from there.

These scenes came to mind as I read the facts in Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (Jan. 27, 2014). The takeaway: It always is a bad idea to lose your cool in a high pressure, aviation-related situation.

When pilot William Hoeper failed in his fourth and final attempt to pass a proficiency test, he ripped off his headset and exchanged angry words at an “elevated decibel level” with the instructor operating the flight simulator. Hoeper’s failure to pass this test guaranteed that he would be fired from Air Wisconsin.

These circumstances prompted an Air Wisconsin official to call the Transportation Safety Administration. He reported that (1) Hoeper was authorized under federal law to carry a firearm on board an aircraft; (2) the airline was “concerned about his mental stability and the whereabouts of his firearm;” and (3) Hoeper was an “[u]nstable pilot” who “was terminated today” by Air Wisconsin.

The TSA responded to this call by requiring the Denver-bound plane on which Hoeper was a passenger to return to the gate. Hoeper was removed and questioned.

Hoeper responded to this call by suing Air Wisconsin for defamation in Colorado state court. His claims were tried to a jury; based on the verdict, the trial court signed a $1.2 million judgment in his favor. The intermediate court of appeals and the Colorado Supreme Court affirmed.

The United States Supreme Court reversed in an opinion written by Justice Sotomayor and joined in full by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Alito. Justices Scalia, Thomas, and Kagan concurred in part and dissented in part.

The majority concluded that Air Wisconsin enjoyed statutory immunity from a defamation claim based on a report to the TSA under the Aviation and Transportation Security Act because “a statement otherwise eligible for ATSA immunity may not be denied immunity unless the statement is materially false.” The majority held that, as a matter of law, the statements at issue were not materially false.

The dissenters agreed with the material falsity standard but wanted to remand for the lower courts to decide whether the statements were materially false.

Two facets of the majority opinion caught my eye.

First, the lower court opinions expressed disagreement about whether material falsity is a question of fact to be determined by the jury or a question of law to be determined by a court. The Supreme Court punted on this issue; it declined to resolve this disagreement and essentially said that the statements at issue here are not actionable regardless of who makes the determination.

Second, the Supreme Court remanded the case for “proceedings not inconsistent with this opinion.”

These facets prompt some personal reactions.

One reaction harkens back to when I practiced law. In that role, I thought a remand for “proceedings not inconsistent” was . . . well, let’s say, unsatisfying.

Now that I write opinions instead of briefs, I can see the wisdom (or at least the jurisprudential desirability) of drafting an opinion narrowly to avoid deciding more than is necessary to resolve the specific issue raised on appeal. Writing narrowly involves considerations about the proper role of an appellate court and avoiding unintended consequences from unnecessary language in opinions. I’ve used this formulation myself in opinions, recognizing that the lawyers and the trial court probably don’t like it any better than I once did.

My other reaction is to wonder how material falsity can be decided in this particular case without determining who makes the decision, jury or judge. Making a material falsity determination “as a matter of law” sounds a lot like a holding that the court gets to decide this issue. But I could be wrong.

Maybe I’ll ask Steve McCroskey for his thoughts.

Did you know . . . ?

by JoAnn Storey

The denial of a petition for writ of mandamus, without comment on the merits, does not establish “the law of the case” that precludes a party from raising the same argument in a subsequent appeal. Perry Homes v. Cull, 258 S.W.3d 580, 585-86 (Tex. 2008). Similarly, the denial of a petition for writ of mandamus, without comment on the merits, does not deprive another appellate court from considering the matter in a subsequent appeal. Chambers v. O’Quinn, 242 S.W.3d 30, 32 (Tex.2007) (holding court of appeals erred in dismissing appeal on the ground that it lacked appellate jurisdiction).

AppellaTech: Using Styles in MS Word II

In my last article, I promised you I would teach you about using styles in MS Word for headings and subheadings in your brief. It's been a tough two months to wait, I know. But now that patience will be rewarded.

You should know from the outset that setting up headings to work perfectly is the most technical process of anything I've discussed so far or anticipate discussing in the future. This is not for the technologically faint of heart. For that reason, I am going to avoid the in-the-weeds detailed description of every action you need to take and, instead, giving general guidelines on how to set everything up. But for those who are not up to the task, I have a solution. At the bottom of this article, I have included a link for an appellate brief template I have created that has all the necessary styles set up. If you plan on using it, I still encourage you to read through this article so you can understand how to tweak the formatting.

The benefits of setting up your brief's headings and subheadings as styles have all the same benefits that using styles for any other portion of your brief. And yes, I really am going to make you read the last article to see what those are. But in addition to all of those, setting up your headings properly has some additional advantages. Once you set up your headings properly, then you have done all of the legwork to create an automated table of contents. This way, once you are done writing your brief, then you are pretty much also done creating your table of contents. And if you make any edits to your document after creating the table of contents, then updating the table of contents is as simple as pressing one key (F9).

There is one more advantage to using style headings that is greatly beneficial for electronic filing. If you convert your Word document into a PDF (more detail on the precise method below), then the PDF's table of contents will be hyper-linked to each identified portion of the brief. That is, if someone viewing the PDF clicks on the portion of table of contents for your Statement of Facts, the PDF jumps to the page where the Statement of Facts begins. And you thought you had to hire an outside company to make your PDF do that...

I'll get into the specifics of creating the table of contents below. For now, though, we need to go through the basics of setting up the heading styles. Just as a precaution, let me begin with some disambiguation. In word processing documents, there are headings and there are headers. For our purposes, headings are a specific set of styles that identify the various portions of your brief (such as Statement of the Case, Statment of the Facts, Analysis, and each specifically identified point and subpoint within the Analysis). Headers, in contrast, are the portions of each page above the margins of the main text of the page. (Footers are the analogous portions at the bottom of the page.) We are focused on headings. For what it's worth, you can do some pretty cool stuff with headers, but nothing really appropriate for appellate briefs, in my opinion.

And now we begin. This is another learn-by-doing post. So go ahead and open up an old brief or a blank document that you can use to experiment on. If you created a file to work with for the last article, use that one. Now you need to access the styles menu. In case you've forgotten how to do that from the last post, here's a quick refresher.

On the Home ribbon at the top of Word, locate the Styles section.


On the bottom right of the Styles section, there is a tiny box with an arrow in it. Click on it. You should see something like this (except yours won't have the same styles listed):


Notice mine has Heading 1, Heading 2, Heading 3, and Heading 4. Unless you have worked with Headings before, yours will only have Heading 1. Once you apply the Heading 1 format to a paragraph, Heading 2 should appear. Applying Heading 2 will cause Heading 3 to appear, and so on. That means you will always have one more heading listed in your Style pane than you actually use. These styles are created by Word and have features that other styles don't have. So you want to use these styles specifically or ones based upon these styles. (More on basing another style on the heading styles below.)

In order to help you understand what items should be formatted as Heading 1 as opposed to Heading 2 or any other heading, it is useful to first look at the Table of Contents you will be creating.


See how there are multiple levels of indentation? Everything that is left-most is formatted as Heading 1. Everything that is indented one level in is formatted as Heading 2. Indented two levels is Heading 3, and so on. Based on this, anything you want to appear in your table of contents should be formatted as a heading. What level of heading it should be marked as depends on how you want it to appear in your table of contents. If you don't want it in your table of contents, it probably shouldn't be formatted as a heading.

Now let's start setting up the heading styles in your document. If you're using an old brief, go to some text that you want to label as Heading 1. (That is, go to some text that you want to appear left-most in your table of contents.) One good example is the text "Statement of the Facts." Select the text you will be using as your sample.


If you move your mouse over the Heading 1 option in the Style pane, you will see a drop-down button on the right.


Click on that button and select "Update Heading 1 to Match Selection."


Congratulations! You have formatted the Heading 1 style. Now find all the other text that you want to be formatted as Heading 1. Place your cursor anywhere in the text, and click on Heading 1. Do this for each item you want formatted as Heading 1.The process for formatting and then applying the formatting for each of the other headings.

Done this way, all of the text that is formatted as Heading 1 will look the same. All of the text formatted as Heading 2 will look the same. Etcetera. There may be occassions, however, where you want two differently-formatted texts to appear in the table of contents at the same indentation level. For example, in my old briefs, my main argument headings would look like this:


My issues presented—the actual statement of the issues, not the heading for that section—would look like this:


I want them both to appear in the table of contents at the same level of indentation, but I don't want them to look the same. There's a way to accomplish this. First, choose which text you want to be identified as Heading 2, and format Heading 2 to look like that text. (For me, it was most logical to format Heading 2 based on my main argument headings.)

Next, go to the other text, and put your cursor anywhere in the text. At the bottom left of the Style pane, there is a button that looks like this:


This is the "New Style" button. Click on it. You will see this pop-up:


Click on the drop-down button for the "Style based on" option. Find "Heading 2" and select it. Then give the new style a name, such as "Issue Presented." While you're at it, go ahead and set "Style for following paragraph" for whatever you want it to be, such as "Body Text." Then click "OK."

The formatting is going to look like whatever Heading 2 is currently set at. Make the necessary changes to make it look how you want it to look. Then click on the drop-down for your newly created style and select "Update ___ to Match Selection."


Format the remaining texts for both headings, and everything will appear at the same indentation on the table of contents.

Now comes the trick part. It's also the part that, if you decide that it's took tricky for you, you can skip without much risk of bad things happening. I like each of my argument headings and subheadings to be numbered (or lettered). I also like that to happen automatically so that if I add or remove a heading mid-way through editing, all the other headings automatically fall into line. It's nice. But set up can be a bit of a hassle. I'll give you the basics, and you can experiment to fill in the rest.

Find on your Home ribbon at the top of Word three buttons that look like this:


The right-most button is for creating what is called a multi-level list. Click on it, and you will see this:


Select "Define New List Style..." You will get this pop-up:


Give the list style a name, such as "Heading List Style." The click on "Format" and then "Numbering."


You will get this pop-up:


Click on the "More" button. You will get this:


This is where the magic happens. It would take me too long to describe everything that can be done here. But I can give you the basic idea. Select the first level, and under "Link Level to style:" select "Heading 1." You probably don't want a number style for that level, so select "(none)", remove any extraneous text, and for "Follow number with:" select "Nothing." For the other levels, associate it with the appropriate heading, choose the number style, number alignment, any other text that should appear after the number, and so on. Once you have everything set up the way you think you want it, click "OK" on this pop-up and "OK" on the underlying pop-up.

There are a couple of things worth noting. First, the list style you created does not appear in the Styles pane if you set it up the way I recommended in the last article. To make further edits, you will have to set it up to view all styles under "Options..." at the bottom of the styles pane. Second, I have found that linking my headings to a list style causes unintended changes to my headings. You may have to tweak back and forth among the headings and the list style to get everything perfect. In my opinion, it's a worthwhile endeavor.

At this point, you should have all your heading styles properly formatted and applied to all the text you want to appear in your table of contents. Now you're ready to make your table of contents. For those of you already feeling mentally taxed, the good news is that this is one of the simpler processes in this longer-than-intended instructional. Put your cursor wherever you want your table of contents to begin. Now click on the "References" ribbon at the top of Word. Find the "Table of Contents" button and click on it.


If you see an option you like, just click on it. Otherwise, click on "Insert Table of Contents."


You're free to make any changes you want. The main thing is to note "Show levels" at the bottom. If you want more than three headings to appear on your table of contents, this is where you make that adjustment. After that, just click on "OK."

If you've truly gone this far, you really should take a moment to sit back and appreciate what you've created. From now on, the only thing you will need to do to update your table of contents is click anywhere in it and press F9. That's it. No more rushing at the last minute to put your table of contents together or worrying if you really got the page numbers right.

Now that you've created your table of contents, you should see some new styles have appeared in your Styles pane.


As you might have guessed, these are the styles for each level in the table of contents. If you don't like the formatting for your table of contents, make the formatting changes with these. If you make the changes with the styles, then the formatting will remain each time you update the table. If you just make changes to the text in the table, you will lose those changes every time you update the table.

There are two additional features that using the heading styles and creating a table of contents gets you in Word. First, go to the table of contents. Let's say we want to go right now to the summary of the argument section of the brief. Hold down the Control key on your keyboard. Now click on the text in the table of contents that says "Summary of the Argument." Voila! You're there.

Second, there's an even better way to do that. Press Control+F on your keyboard. That will bring up the Navigation pane.


Now click on the left-most button (or tab) just beneath the search field.


Look at that! All your major headings. Click on any one of them and you are instantly transported to the referenced section. Admit it. That's pretty awesome.

One final trick. In order to perform this trick, however, you need Adobe Acrobat. Not Adobe Reader. You need the full blown Acrobat program. It's not cheap. But if you have it, you're going to love this.

Click on File in Word, and then select "Save As".


You will get this pop up:


For "Save as type:", select "PDF (*.pdf)"


Give it whatever name is appropriate and click save. If it doesn't open automatically, open the PDF. Now go to the table of contents. Click on "Summary of the Argument." Bam! You're there. Now the PDF of your brief that you serve to the court will be hyper-linked for the court. Well, the table of contents will be. Hyperlinking everything else will have to wait for another article. (After I learn more about it.)

There is one more incredibly useful advantage. On the left of the Acrobat screen, there should be four icons.


The second one down is for bookmarks. Click on it. You will see this:


Your brief is now fully bookmarked! The courts receive your brief in this format. So the bookmarks are retained when the judges and staff review your brief. Bookmarking is an efficient way for the judges to move around through your brief as they work with it. To me, this is one of the greatest benefits of using heading styles. After some initial effort of setting up your styles the way you want them, a simple conversion to PDF will give your briefs a more professional look and aid the courts in reviewing the briefs.

I have, for the time being at least, reached the end of my attempts to teach you some of the more technical side of MS Word. I hope you have found it useful. Before moving on to other topics, I'm going to leave you with a gift of sorts. If you'd like to use styles and have your table of contents be automatically updated but don't have the time, interest, or aptitude to set up everything yourself, I present to you, a brief template with all of the basics already set up. Feel free to fiddle around with it. If you mess it up, just download a new version. I lay no proprietary claim to any of its contents.Use it. Share it. Enjoy it.

If you have any questions about the template or anything else I've discussed, please feel free to contact me at the email address below. Good luck.

Derek Bauman
Staff attorney, First Court of Appeals

Comments, questions, and useful information are always welcome (and desperately sought). Please send them to: submissions@hbaappellatelawyer.org.