Tips for Preparing for the TBLS Specialization Exam in Civil Appellate Law

by Jeffrey L. Oldham, Bracewell & Julliani LLP, and Scott A. James, Shook, Hardy & Bacon L.L.P.

I. General Considerations for Preparation

A. Amount of Studying

The exam is difficult and requires significant preparation. In years past, successful examinees have advised studying, in total, 100-200 hours. Although this figure seems daunting, effective studying over the course of several weeks/months quickly accumulates to these totals.

B. Timeline for Studying

1. Successful examinees have advised commencing preparation during the summer months before the exam. Successful examinees have also stated during previous conferences that applicants who have not dedicated significant study time by the time of the Advanced Civil Appellate Law Course in September may lack adequate preparation time. While heeding this advice is recommended, an examinee who begins preparation in September may discover that he or she has sufficient time to become adequately prepared for the exam, particularly if he or she can set aside large amounts of time in the weeks before the exam.

2. Our advice—do not be too easily discouraged from taking the exam, even if you have not dedicated a significant amount of time to studying up to this point. If you can begin preparation at, or shortly after, the date of the September course, and you are able to study consistently between now and the exam, you should seriously consider sitting for the exam. Last year, a large number of approved applicants elected not to sit for the exam, likely due to the concern that they lacked adequate preparation time.

3. However, cramming the weekend (or even the full week) before the exam will likely not allow for adequate preparation, even for a practitioner who devotes nearly all of his or her time to civil appellate work. That is because the exam covers a number of appellate and trial topics that are not part of the everyday practice of an appellate lawyer. Our recommendation is to, whenever possible, make studying part of your daily routine. You should endeavor to study for one or two hours a day. Daily review of this highly detailed material is likely more beneficial than significant studying time shortly before the exam.

C. Studying Tips

Make your own study tools. Prepare outlines, note cards, timelines, charts, etc. in order to effectively digest the detailed information that will be the subject of the exam. As the exam approaches, you can transition your studies from the significant volume of resource materials to these more manageable study tools. These study tools will allow you to focus on the detailed information in the weeks and days immediately preceding the exam.

II. Primary Resources to Study

A. General

We have provided this list of resources based upon our experiences in studying for and taking the exam. We found that our review of these materials covered most of the information on the exam.

B. Resource List

1. All papers from the Civil Appellate Practice Course 101 (also known as “Boot Camp” and “Nuts and Bolts”). We recommend consulting papers—at least to identify hot topics—from courses for the two years preceding the exam. These papers provide an excellent review of the important details that are likely to be tested. It is a good idea to study at least one paper on each of the likely test topics. If you did not attend the courses, you can access the papers on the TexasBarCLE website for a fee. />
2. All substantive papers from the Advanced Civil Appellate Practice Course itself—including courses for the two years preceding the exam. Again, it is worth at least reviewing the list of papers to identify hot topics that may appear on the exam, and if you did not attend the courses, you can access the papers on the TexasBarCLE website for a fee.

3. You may also want to consider consulting the substantive papers from the University of Texas State and Federal Appeals Conference. If any of these papers are duplicative, focus on the most recent and comprehensive paper in order to limit the amount of resource material that you are studying. Note that there are always a number of papers presented at the conferences that accompany panel discussions, focus on interesting statistical information, or provide guidance on brief writing, etc. While these papers are useful for the practitioner, we recommend focusing on the papers from the Civil Appellate Practice Course 101 and the substantive papers provided during these other conferences.

4. Comprehensive case summaries for Texas Supreme Court cases for the two years preceding the exam. We recommend those summaries written by the Texas Supreme Court staff that are presented at CLE presentations, including those presented at the Advanced Civil Appellate Practice Course and the University of Texas State and Federal Appeals Conference. Osler’s e-mail summaries can also be helpful. Additionally, some successful past examinees have reported compiling a binder of every supreme court case within the preceding year(s) and making their own notes on each case, or at least the key procedural cases and the more significant substantive cases. Finally, the State Bar of Texas Appellate Section’s quarterly newsletter, The Appellate Advocate, provides case summaries of all the Texas Supreme Court cases decided each quarter. Prior issues of The Appellate Advocate are available on the section’s website, www.tex-app.org.

5. The Texas Rules of Civil Procedure, Texas Rules of Appellate Procedure, Texas Civil Practice & Remedies Code, and Texas Rules of Evidence (but only those evidence rules related to topics discussed in the Exam Specifications for Civil Appellate Law that is available on the TBLS website). In particular, applicants should read and re-read the Texas Rules of Appellate Procedure.

6. The Federal Rules of Civil Procedure and Federal Rules of Appellate Procedure (see our discussion below of the federal questions). Again, the Federal Rules of Appellate Procedure are more significant.

7. O’CONNORS TEXAS RULES—CIVIL TRIALS. Review the entirety of this resource, but pay special attention to the introduction, which outlines the recent statutory, rule, and common law changes. This section highlights areas of law that are evolving, and it provides good testing material. The exam, in years past, has tested on these evolving areas to ensure that examinees are current on significant changes in the law. Also pay special attention to those trial rules that frequently are the focus of appellate practice (i.e., preservation, findings of fact/conclusions of law, etc.).

8. O’CONNORS TEXAS RULES—CIVIL APPEALS. Pay special attention to the introduction, for the reasons stated above.

9. O’CONNORS CIVIL PRACTICE & REMEDIES CODE, with annotations for the CPRC provisions described in the Exam Specifications for Civil Appellate Law on the TBLS website. The relevant provisions of the CPRC include, but are not necessarily limited to, Chapter 9 (Frivolous Pleadings & Claims), Chapter 10 (Sanctions for Frivolous Pleadings & Motions), Chapter 15 (Venue), Chapter 41 (Damages), and Chapter 51 (Interlocutory Appeals).

III. Popular Topics

The TBLS provides a list of topics in its Exam Specifications for Civil Appellate Law. The list is comprehensive. Our experience is that the exam is wide-ranging, and this comprehensive list of topics is a fair indicator of the breadth of the test. You should find one or more resources to cover each of these topics. We provide the below list of topics to place special emphasis on those areas of the law that successful examinees have reported as being traditional favorites for testing.

A. Interlocutory appeals. Memorize section 51.014 of the CPRC. This is a favorite for the exam, in the essays and multiple choice.

B. All appellate timetables and deadlines (state and federal).

C. Findings of Fact and Conclusions of Law. Memorize all deadlines.

D. Default Judgments and the ways to review them (motion for new trial, restricted appeals, bills of review).

E. Preservation of error at different points of case.

F. Standards of Review.

G. Injunctive Relief.

H. Texas Supreme Court jurisdiction. Be sure to review the actual Texas Government Code statute.

I. Supersedeas. Elaine Carlson’s paper, Reshuffling the Deck: Enforcing & Superseding Civil Judgments on Appeal After HB 4, is a very good resource, as is the section on superseding judgments in the Appeals volume of McDonald & Carlson’s TEXAS CIVIL PRACTICE treatise.

J. Perfecting appeals.

IV. Exam Specifics

A. Format

1. Essay Questions

In years past, the essay portion of the exam has been given in the morning. Generally, there are three separate essay questions for a 3-hour morning exam period. Each of these questions contains differing numbers of subparts. Plan to generally spend one hour per question. Limit yourself to a maximum of one hour on the first question. You will be able to return to that question if time permits. Because the questions each contain a different amount of subparts, be aware of the points assigned to each particular subpart so that you can maximize your ability to get points should you run out of time.

Special note for repeat takers—it has been reported that it is common for a question from the prior year’s exam to reappear in some fashion the following year. So, if you are a repeat taker, come prepared on the topics tested in the prior year.

2. Multiple Choice Questions

There are approximately 100 multiple choice questions for a 3-hour exam period. 80 of those questions pertain generally to Texas appeals, 10 pertain to federal appeals, and 10 pertain to ethics. Many of these multiple choice questions are presented in a complex format that requires the applicant to consider the correctness of several possible answers. Pay special attention to the call of the question. Many of the questions may seem to include multiple correct choices. Choose the “most” correct where necessary, as many of the questions are very nuanced. Keep track of time as you go through the multiple choice questions, and do not let yourself get caught up on any one question. Like the MBE portion of the bar exam, these questions are difficult.

3. Ethics

The 10 ethics multiple choice questions are not specific to the specialization exam for civil appellate law, but rather are provided to all examinees for all specialization exams. Because of this format, preparing for the ethics questions is difficult. Past examinees have given mixed advice on the helpfulness of preparing in any significant detail for the ethics questions. Our experience is that the ethics questions are detailed and fact-sensitive, and that these questions would be difficult even with substantial time spent in preparing for these questions. We recommend reviewing/reading the ethics rules once, but devoting your preparation time to other areas. This is especially true if you feel that you are in a crunch and are worried about whether you are adequately prepared for the appellate questions. If you have time, Texas Lawyer’s Professional Ethics (4th ed. 2007) is a good basic resource that contains all of the rules and annotations containing the most relevant cases.

4. Federal Questions

There are also 10 multiple choice federal questions. We recommend paying special attention to those areas where the federal and state rules diverge. But past examinees have given mixed advice about the helpfulness of preparing for these questions, and the authors have slightly differing views. One author studied only the Comparison of State and Federal Appeals paper presented at the 2010 Civil Appellate Practice 101 Course. On the other hand, because these questions are generally detail specific, this is an area where examinees (even those who do not practice in federal courts) can obtain credit with adequate preparation. O’CONNORS FEDERAL RULES OF CIVIL TRIALS provides additional helpful material, including timetables.

B. Laptop or Handwriting

You may take the essay portion of the exam on a laptop or by handwriting. Most examinees report taking the exam on their laptop. This has been generally recommended because the time period in which to complete the essay questions is challenging. However, if you are more comfortable with handwriting, stick within your comfort zone.