Welcome to the July 2018 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.
ORAL ARGUMENT: WHEN YOU NEED IT, HOW TO GET IT, AND WHAT TO DO ONCE IT'S GRANTED
by Justice Evelyn Keyes and
Angela Spoede, First Court of Appeals, Houston
ORAL ARGUMENT: PRESENT TO HELP THE COURT
by Nicholas Bruno, Beck Redden, LLP
U.S. SUPREME COURT TREATS CIRCUIT SPLIT BY RECOMMENDING LESS VITAMIN C
by Mark Ritchie, Law Office of Mark Ritchie, P.C.
CYBERSECURITY RISK ASSESSMENTS: THE FIRST STEP IN SECURING YOUR PRACTICE
by Jill Schumacher, Caldwell Boudreaux Lefler, PLLC and Adam Schumacher, CISSP
DID YOU KNOW?
by JoAnn Storey
CASE UPDATE FOR APRIL, MAY, AND JUNE 2018
Case updates for the Houston practitioner
by Andrew C. Nelson, Wright & Close, LLP, and
Kyle Lawrence, Beck Redden, LLP
CROSSWORD PUZZLE
by James Marrow
UPCOMING LUNCHEONS
A look at the upcoming CLE luncheons for the
HBA Appellate Practice Section
Cybersecurity Risk Assessments: The First Step in Securing Your Practice
by Jill Schumacher, Caldwell Boudreaux Lefler PLLC, and Adam Schumacher, CISSP, IT Operations & Security at FlightAware, LLC
To start managing your cybersecurity, perform a risk assessment. In a risk assessment, you attempt to determine the threats you face, where you are vulnerable to those threats, and the impact the threats would have on your practice or organization. Understanding your risks equips you to make informed decisions about where and how you spend your precious resources (time and money) on effective countermeasures.
Step 1: Identify assets and the impact of loss, publication, or alteration of those assets.
First, identify the assets that need to be protected and their value to the firm or organization. Lawyers need to understand the impact if assets are lost, stolen, or damaged. In the practice of law, there are two layers to this question. First, lawyers need to assess the impact of the loss, publication, or alteration of the lawyer’s assets, including firm information and all work product. Second, lawyers need to assess the impact of the loss, publication, or alteration of a client’s assets that the client has shared with the lawyer. The impact on a client may not be obvious to the lawyer, so it may be helpful to discuss this information with client. For example, the publication of a client’s sensitive information may have no impact on an appeal, but if the client has a duty to protect that information, the client may suffer in other ways.
There are several categories of assets lawyers, firms, legal organizations, or companies might have, including:
• Personal information: information about clients, employees, attorneys
• Physical assets: computers, phones, cars, or buildings
• Commercial or industrial secrets: patents/trade secrets of clients, all privileged work
• Social/reputational: trademarks, brand, or customer confidence
• Digital resources: storage space, processing power, network capacity, etc.
Try to think about all of these categories to get an accurate list of your assets.
Step 2: Identify threats to assets and the likelihood the threats will occur.
After identifying a list of your assets and their value, try to enumerate the possible threats and the likelihood the threat will become actualized. Although this step can be done with the assistance of an IT or cybersecurity professional, it still requires an understanding of the broader operational context of your practice. There are a few categories of threats to consider when working through this step.
Types of threats to assets include:
• External, internal, human, or automated hostile attacks
• Human error due to omission or action (e.g. forgetting to save a document or sending confidential information to the wrong person)
• Structural failures (e.g. hardware crash)
• Acts of God (e.g. Hurricane Harvey)
The first, and generally most well-publicized types of threats, are the adversarial threats. Equally important, however, are individuals who have or gain access to your assets and are not trying to cause harm, but accidentally lose, publicize, or alter assets.
Aside from threats stemming from people, there are various types of environmental and structural issues. These can range from simple hardware failure, power loss, or software glitches to large disasters like hurricanes, earthquakes, or floods.
After identifying possible threats, to assess risk, lawyers must try to understand the likelihood that a specific threat will materialize. Determining the chances that a threat will materialize is not an exact science. Many of the threats a law firm might face relate specifically to the firm’s clients and work. The size and structure of the firm, the types of clients, and the value of the firm’s assets influence not just the sources of potential threats, but also the odds they materialize. You may have some sense about the likelihood of specific threats materializing based on information from your clients about past issues or by comparing your firm with similar firms.
Step 3: Identify vulnerabilities and how easy they are to exploit.
Once you have a rough sense of your assets, the range of threats you face, and your best assessment of their relative likelihood of occurring, the next step is to take stock of your vulnerabilities and how easy they are to exploit. Cybersecurity vulnerabilities can come from many places: bugs in software, configuration settings in software, business processes or practices, and even the physical environment. Pare this down by using the inventory of assets and risks to focus on the threats that seem most important and relevant to your specific practice.
There are too many vulnerabilities across all types of software for any person to be able to know about all of them, but there are a number of resources that can help. The foremost is the common vulnerabilities and exposures (CVE: https://cvs.mitre.org) database maintained by mitre. It is a publicly searchable database and one of the main sources of public cybersecurity vulnerability information in the world. The United States Computer Emergency Readiness Team (US-CERT: https://www.us-cert.gov) provides resources about current security incidents, threats, and vulnerabilities as well as a few publications aimed at individuals who are not already cybersecurity experts.
Not all vulnerabilities are created equal. Some may require sophistication and dedication to exploit while others may be mitigated by some other protection. When you are enumerating vulnerabilities, it is also important to assess and understand the impact the vulnerability may have to you or your organization. For example, losing a cell phone may not be catastrophic if the data it contains is encrypted and locked behind a secure password. The national vulnerability database (NVD: https://nvd.nist.gov), maintained by the National Institute of Standards and Technology (NIST) takes the published CVE information and adds a score indicating their assessment of the impact based on a number of standardized criteria. These scores are based on an analysis of the publicly available information at the time the vulnerability is published and may change somewhat as new details emerge. Though they provide a good foundation for assessing the severity of a vulnerability, these scores obviously do not consider any mitigating (or exacerbating) circumstance that may apply to you.
Step 4: Calculate your risk.
To get a sense for your risk level, consider the importance of the asset, versus the ease of exploitation, versus the likelihood of exploitation. To build a risk scorecard, use the following formula: Risk equals the relative value of asset multiplied by the severity of vulnerability multiplied by the likelihood of threat. Once you have a sense of which assets face the most risk, you can prioritize the places to increase protection and direct your energy to mitigating the vulnerabilities that will have the greatest impact.
Step 5: Rinse and Repeat.
Risks constantly evolve, so you will want to periodically go through this process to ensure you are taking the most prudent steps in securing your cyber assets.
If you are interested in learning more about performing risk assessments, a number of organizations have developed their own processes and resources for formalized risk management and assessment. The National Institute of Standards and Technology (NIST) has its Special Publication SP800-30: Guide for Conducting Risk Assessments (https://csrc.nist.gov/publications/detail/sp/800-30/rev-1/final) that is available for free online. Though it is geared toward large governmental organizations, it provides an excellent reference for anyone. The International Standards Organization (ISO/IEC) also publishes a number of documents focused on risk management practices (ISO 3100:2018) and risk assessment (ISO 31010:2009), as well as the ISO 27000 series which focuses on information security management, though these resources require a paid license from ISO.
After you complete a risk assessment, you have the information you need to take the next steps in improving your cybersecurity defenses. You should have an understanding of what assets are most at risk, the threats they face, and where they are weak against those threats. Depending on the value of your assets and your willingness to accept risk, you can start taking steps to mitigate, eliminate, or simply accept the risk in the vulnerabilities you’ve identified.
To start managing your cybersecurity, perform a risk assessment. In a risk assessment, you attempt to determine the threats you face, where you are vulnerable to those threats, and the impact the threats would have on your practice or organization. Understanding your risks equips you to make informed decisions about where and how you spend your precious resources (time and money) on effective countermeasures.
Step 1: Identify assets and the impact of loss, publication, or alteration of those assets.
First, identify the assets that need to be protected and their value to the firm or organization. Lawyers need to understand the impact if assets are lost, stolen, or damaged. In the practice of law, there are two layers to this question. First, lawyers need to assess the impact of the loss, publication, or alteration of the lawyer’s assets, including firm information and all work product. Second, lawyers need to assess the impact of the loss, publication, or alteration of a client’s assets that the client has shared with the lawyer. The impact on a client may not be obvious to the lawyer, so it may be helpful to discuss this information with client. For example, the publication of a client’s sensitive information may have no impact on an appeal, but if the client has a duty to protect that information, the client may suffer in other ways.
There are several categories of assets lawyers, firms, legal organizations, or companies might have, including:
• Personal information: information about clients, employees, attorneys
• Physical assets: computers, phones, cars, or buildings
• Commercial or industrial secrets: patents/trade secrets of clients, all privileged work
• Social/reputational: trademarks, brand, or customer confidence
• Digital resources: storage space, processing power, network capacity, etc.
Try to think about all of these categories to get an accurate list of your assets.
Step 2: Identify threats to assets and the likelihood the threats will occur.
After identifying a list of your assets and their value, try to enumerate the possible threats and the likelihood the threat will become actualized. Although this step can be done with the assistance of an IT or cybersecurity professional, it still requires an understanding of the broader operational context of your practice. There are a few categories of threats to consider when working through this step.
Types of threats to assets include:
• External, internal, human, or automated hostile attacks
• Human error due to omission or action (e.g. forgetting to save a document or sending confidential information to the wrong person)
• Structural failures (e.g. hardware crash)
• Acts of God (e.g. Hurricane Harvey)
The first, and generally most well-publicized types of threats, are the adversarial threats. Equally important, however, are individuals who have or gain access to your assets and are not trying to cause harm, but accidentally lose, publicize, or alter assets.
Aside from threats stemming from people, there are various types of environmental and structural issues. These can range from simple hardware failure, power loss, or software glitches to large disasters like hurricanes, earthquakes, or floods.
After identifying possible threats, to assess risk, lawyers must try to understand the likelihood that a specific threat will materialize. Determining the chances that a threat will materialize is not an exact science. Many of the threats a law firm might face relate specifically to the firm’s clients and work. The size and structure of the firm, the types of clients, and the value of the firm’s assets influence not just the sources of potential threats, but also the odds they materialize. You may have some sense about the likelihood of specific threats materializing based on information from your clients about past issues or by comparing your firm with similar firms.
Step 3: Identify vulnerabilities and how easy they are to exploit.
Once you have a rough sense of your assets, the range of threats you face, and your best assessment of their relative likelihood of occurring, the next step is to take stock of your vulnerabilities and how easy they are to exploit. Cybersecurity vulnerabilities can come from many places: bugs in software, configuration settings in software, business processes or practices, and even the physical environment. Pare this down by using the inventory of assets and risks to focus on the threats that seem most important and relevant to your specific practice.
There are too many vulnerabilities across all types of software for any person to be able to know about all of them, but there are a number of resources that can help. The foremost is the common vulnerabilities and exposures (CVE: https://cvs.mitre.org) database maintained by mitre. It is a publicly searchable database and one of the main sources of public cybersecurity vulnerability information in the world. The United States Computer Emergency Readiness Team (US-CERT: https://www.us-cert.gov) provides resources about current security incidents, threats, and vulnerabilities as well as a few publications aimed at individuals who are not already cybersecurity experts.
Not all vulnerabilities are created equal. Some may require sophistication and dedication to exploit while others may be mitigated by some other protection. When you are enumerating vulnerabilities, it is also important to assess and understand the impact the vulnerability may have to you or your organization. For example, losing a cell phone may not be catastrophic if the data it contains is encrypted and locked behind a secure password. The national vulnerability database (NVD: https://nvd.nist.gov), maintained by the National Institute of Standards and Technology (NIST) takes the published CVE information and adds a score indicating their assessment of the impact based on a number of standardized criteria. These scores are based on an analysis of the publicly available information at the time the vulnerability is published and may change somewhat as new details emerge. Though they provide a good foundation for assessing the severity of a vulnerability, these scores obviously do not consider any mitigating (or exacerbating) circumstance that may apply to you.
Step 4: Calculate your risk.
To get a sense for your risk level, consider the importance of the asset, versus the ease of exploitation, versus the likelihood of exploitation. To build a risk scorecard, use the following formula: Risk equals the relative value of asset multiplied by the severity of vulnerability multiplied by the likelihood of threat. Once you have a sense of which assets face the most risk, you can prioritize the places to increase protection and direct your energy to mitigating the vulnerabilities that will have the greatest impact.
Step 5: Rinse and Repeat.
Risks constantly evolve, so you will want to periodically go through this process to ensure you are taking the most prudent steps in securing your cyber assets.
If you are interested in learning more about performing risk assessments, a number of organizations have developed their own processes and resources for formalized risk management and assessment. The National Institute of Standards and Technology (NIST) has its Special Publication SP800-30: Guide for Conducting Risk Assessments (https://csrc.nist.gov/publications/detail/sp/800-30/rev-1/final) that is available for free online. Though it is geared toward large governmental organizations, it provides an excellent reference for anyone. The International Standards Organization (ISO/IEC) also publishes a number of documents focused on risk management practices (ISO 3100:2018) and risk assessment (ISO 31010:2009), as well as the ISO 27000 series which focuses on information security management, though these resources require a paid license from ISO.
After you complete a risk assessment, you have the information you need to take the next steps in improving your cybersecurity defenses. You should have an understanding of what assets are most at risk, the threats they face, and where they are weak against those threats. Depending on the value of your assets and your willingness to accept risk, you can start taking steps to mitigate, eliminate, or simply accept the risk in the vulnerabilities you’ve identified.
Crossword Puzzle
by James Marrow, Hogan & Hogan
Here is the latest HBA Appellate Lawyer crossword puzzle. For those who prefer to solve online, there is a .PUZ version of the file. (To solve online, you may need the Across Lite software, which is available for free.)
A PDF version of the puzzle is available. The solution is also available.
Here is the latest HBA Appellate Lawyer crossword puzzle. For those who prefer to solve online, there is a .PUZ version of the file. (To solve online, you may need the Across Lite software, which is available for free.)
A PDF version of the puzzle is available. The solution is also available.
Upcoming Luncheons
August 9 "Jury Charge and Casteel," by Hon. Tracy Christopher and David Gunn
RSVP Deadline: noon on Monday August 6th
Place: Coronado Club, 919 Milam Street, Suite 500 from 11:30 a.m. - 1:00 p.m.
Cost: $40 for Section members who RSVP; $45 for non-members who RSVP and for Section member walk-ins; $50 for non-member walk-ins.
To RSVP, please e-mail luncheon@hbaappellatesection.org.
Reservations are transferable. Please note that if you RSVP and do not attend or transfer your reservation, you will be billed for the cost of the luncheon.
For more information, please contact Meetings and Membership Chair, James Marrow, at (713) 222-8800. PLEASE NOTE IN YOUR RSVP IF YOU HAVE A DIETARY REQUEST (vegetarian, gluten free, non-dairy, non-seafood, etc.).
Business attire required (jackets for men). Please do not valet park at the Coronado Club; valet parking at the Coronado Club is only for Coronado Club members who pay for parking through their individual memberships. Paid parking is available at the McKinney Place Garage at 930 Main Street, at street level, and in surrounding surface lots.
* If you RSVP now for a luncheon in the future, please indicate in your email which luncheon you are planning to attend.
RSVP Deadline: noon on Monday August 6th
Place: Coronado Club, 919 Milam Street, Suite 500 from 11:30 a.m. - 1:00 p.m.
Cost: $40 for Section members who RSVP; $45 for non-members who RSVP and for Section member walk-ins; $50 for non-member walk-ins.
To RSVP, please e-mail luncheon@hbaappellatesection.org.
Reservations are transferable. Please note that if you RSVP and do not attend or transfer your reservation, you will be billed for the cost of the luncheon.
For more information, please contact Meetings and Membership Chair, James Marrow, at (713) 222-8800. PLEASE NOTE IN YOUR RSVP IF YOU HAVE A DIETARY REQUEST (vegetarian, gluten free, non-dairy, non-seafood, etc.).
Business attire required (jackets for men). Please do not valet park at the Coronado Club; valet parking at the Coronado Club is only for Coronado Club members who pay for parking through their individual memberships. Paid parking is available at the McKinney Place Garage at 930 Main Street, at street level, and in surrounding surface lots.
* If you RSVP now for a luncheon in the future, please indicate in your email which luncheon you are planning to attend.
Case Updates for April, May, and June 2018
By Andrew Nelson, Wright & Close, LLP and Kyle Lawrence, Beck Redden LLP
FIRST COURT OF APPEALS
In re Vantage Drilling International, No. 01-17-00592-CV, 2018 WL 2666945 (Tex. App.—Houston [1st Dist.] June 5, 2018, orig. proceeding)
The court refused to grant mandamus relief reversing a trial court’s order compelling arbitration when the party opposing arbitration failed to prove that a final appeal would be inadequate to review the alleged arbitration waiver.
Martinez Partners, a law firm, filed suit against Vantage, a former client, over the non-payment of attorney’s fees. The parties’ engagement agreements contained arbitration provisions which neither party initially invoked. The parties litigated heavily for nearly a year. Then, following a hearing in which the trial judge made comments that cast doubt upon Martinez Partners’ position in the litigation, Martinez Partners moved to compel arbitration. Vantage opposed, arguing that Martinez Partners had either expressly or impliedly waived arbitration. The trial court compelled arbitration, and Vantage filed a petition for writ of mandamus.
The court first examined the standards for granting mandamus following an order compelling arbitration. When reviewing an order compelling arbitration, mandamus is generally unavailable, and the party seeking mandamus must meet a “particularly heavy” burden. Any doubts, including doubts regarding waiver, should be resolved in favor of arbitration. The court acknowledged that post-arbitration review may create some wasting of resources, but noted that allowing pre-arbitration review in all cases would create needless and costly battles in the appellate courts. The court then looked at the specific facts of the case to see whether Vantage could meet its “particularly heavy” burden.
The main purported benefit of avoiding arbitration, according to Vantage, was the avoidance of further expense and delay. However, standing alone, this possibility is generally not sufficient to support mandamus relief. Next, Vantage argued that the time and money already spent in litigation would be wasted if arbitration was compelled. The court rejected that argument holding that the discovery conducted during litigation would also benefit the arbitration and no special circumstances existed that would cause Vantage to suffer prejudice if arbitration was compelled. Finally, Vantage argued that mandamus should issue as a result of Martinez Partners’ “impermissible tactical conduct.” The court held that there was no authority supporting the argument that tactical conduct trumps the legislature’s strong preference in favor of arbitration as an alternative vehicle for settling disputes. The court denied mandamus.
Justice Keyes dissented. She would have held that Martinez Partners’ conduct met all the elements of waiver by substantial litigation conduct set by Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008) and Henry v. Cash Biz, LP, —S.W.3d—, No. 16-0854, 2018 WL 1022838 (Tex. Feb. 23, 2018), and that mandamus relief was appropriate to enforce the waiver. She summarized her position as follows: By approving the trial court’s order sending this case to arbitration, the majority allows the real party in interest to take the spoils of its abusive discovery practices over almost a year and its insight into the trial court’s skeptical perception of its case gained through litigation conduct into its newly-sought arbitration proceedings, thereby avoiding the trial court’s ruling on Vantage’s motion for partial summary judgment filed against it and creating a new playing field.
Fuentes v. Zaragoza, No. 01-16-00251-CV, 2018 WL 2437120 (Tex. App.—Houston [1st Dist.] May 31, 2018, no pet. h.)
A trial court could not render judgment against entities as alter egos of a named defendant when those entities were nonsuited prior to trial.
Evangelina Zaragoza filed for divorce from Miguel Zaragoza Fuentes. Miguel contested personal jurisdiction and, after losing his challenge, did not appear for trial. Evangelina took a default judgment against him. Miguel is a very successful businessman who owns numerous entities. The default judgment awarded Evangelina $537 million in damages and a 50% interest in 89 business entities, on the grounds that they were Miguel’s alter-egos. Miguel then moved for judgment as a matter of law and filed a motion for new trial, both of which were denied. A number of Miguel’s related entities also intervened in the case and moved to set aside the alter-ego order, but the court denied those motions as well.
On appeal, Miguel and the entities made several challenges, including an argument that the trial court erred in rendering judgment against the entities as Miguel’s alter-egos. The entities argued “that (1) the trial court violated their due process rights by divesting them of their property without notice or hearing, (2) the trial court ignored rules on the joinder of necessary parties, and (3) the evidence failed to demonstrate that any of these companies were Miguel’s alter egos.” The court agreed on all points.
The court noted that one of the co-appellants was never served. The others were not put on notice that their property interests would be at stake during trial. Evangelina non-suited the entities before trial and did not furnish them with her proposed property division. Evangelina’s alter-ego theory did not relieve her of the duty to ensure that all parties were afforded notice and an opportunity to be heard. Even an entity that has been found to be an alter-ego of an individual has those rights. The court held that “all parties alleged to be part of a single enterprise must each be afforded an opportunity to defend against the claims asserted.” If an entity is not afforded notice and an opportunity to be heard, its due process rights are violated, and a court may not enter judgment against it.
Similarly, the court held that Evangelina failed to join all necessary parties to the action; therefore, the trial court erred in rendering judgment. Because all of the alleged alter-egos owned property subject to the division Evangelina requested, they were all necessary and indispensable parties without whom a judgment may not be entered.
Finally, the court held that the evidence was legally and factually insufficient to support the trial court’s alter-ego finding. The First Court reversed the trial court’s judgment.
FOURTEENTH COURT OF APPEALS
Critical Path Resources, Inc. v. Cuevas, -- S.W.3d ---, 2018 WL 1532343 (Tex. App.—Houston [14th Dist.] Mar. 29, 2018, no pet. h.).
Because the concept of superseding cause was not baked into the instruction on proximate cause given the jury, and the appellant did not argue that the sufficiency of the evidence should be determined as if the charge included an instruction on new-and-independent cause, the Court refused to consider evidence of superseding causes when evaluating the sufficiency of the evidence to support proximate causation.
Critical Path Resources is an appeal of a multi-million-dollar judgment rendered on a verdict after a wrongful-death and personal-injury trial arising from a catastrophic refinery explosion. The majority overruled Critical Path’s challenges to the sufficiency of the evidence to support the negligence and causation findings, but suggested a remittitur of a portion of the damages. The dissent would have rendered a take-nothing judgment on the basis that events after Critical Path’s negligent conduct constituted superseding causes. Appellate practitioners will be particularly interested in the Court’s analysis of the greatest relief Critical Path could receive based on its argument that the trial court erred by refusing to submit an instruction on new-and-independent cause.
In its opening brief, Critical Path argued that it was an abuse of discretion to refuse the instruction because there was evidence to support its submission. Critical Path further argued that it was entitled to a new trial because the refusal was harmful. But Critical Path did not contend, until a post-submission brief, that the sufficiency of the evidence should be evaluated as if the instruction were properly included in the charge. In this posture, the majority disagreed with the dissent’s consideration of evidence of superseding causes when reviewing the sufficiency of the evidence to support proximate causation. According to the majority, the “concept of superseding cause [was] not baked into the standard instruction on proximate cause given” to the jury. Thus, noting the “general rule” that the sufficiency of the evidence is “based on the charge as given, which in this case lacked an instruction on new and independent (or superseding) cause,” the majority rejected the dissent’s reasoning that superseding cause could be considered as a component of proximate cause. Furthermore, the majority explained, even if Critical Path had framed its appellate complaint as a sufficiency challenge, the greatest relief it could obtain was the relief it requested in its appellate brief: a new trial.
Toth v. Sears Home Improvement Products, Inc., No. 14-17-00615-CV, 2018 WL 2139285, at *1 (Tex. App.—Houston [14th Dist.] May 10, 2018, no pet. h.).
The Fourteenth Court held that the TCPA’s commercial-speech exemption, as recently construed by the Supreme Court, did not apply to a contractor’s statements recommending a third-party’s product to a homeowner.
The Texas Citizens Participation Act (“TCPA”) allows for early dismissal of claims based on certain types of communications. But the Act does not apply to claims based on some forms of commercial speech. Tex. Civ. Prac. & Rem. Code § 27.010(b). The Supreme Court recently clarified that the commercial-exemption applies when: (1) the defendant was primarily engaged in the business of selling or leasing goods, (2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant’s capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides. Castleman v. Internet Money Ltd., 61 Tex. Sup. Ct. J. 1056, 2018 WL 1975039, at *3 (Tex. Apr. 27, 2018) (per curiam). In Toth v. Sears Home Improvement Products, Inc., decided two weeks after Castleman, the Fourteenth Court determined the applicability of the commercial-speech exemption in light of the Supreme Court’s recent decision.
Winifred Langham complained that moisture was rising through wood floors that Sears sold and installed, so Sears sent an independent flooring contractor, John Toth, to investigate. Toth recommended that the floors be re-installed using a sealant product called Bostik. When Sears offered a refund instead, Langham filed suit and hired Toth to re-install the floors. Sears then sued Toth, claiming that he violated a confidentiality provision in his independent-contractor agreement by communicating with Langham.
On appeal, the Fourteenth Court determined that Toth’s statements to Langham recommending the Bostik product did not meet the second or third Castleman elements. Therefore, commercial-speech exemption did apply.
First, the Court observed there was “no indication that Toth was a seller of Bostik[,]” so his statements were “akin to expressing an opinion or evaluation about another’s product . . . , which is ordinarily protected” by the TCPA. Second, the Court reasoned that Castleman “aligns” with earlier cases requiring the statement to be made “for the purpose of securing sales in the goods or services of the person making the statement.” But here, Toth “proposed a commercial transaction to Sears—not to Langham—by recommending that Sears purchase the product and use it”; there was “no indication . . . that Toth made the Bostik statements to coax Langham into hiring him” to fix the floors. Finally, the Court concluded that Toth made the statements “while performing under the contract as Sears’s independent-contractor[,]” not in “his individual capacity as a seller of goods or services.” The “only reason he was speaking to Langham” was because Sears engaged him to do so, and there was no evidence that he was “promoting his personal business . . . instead of replacing the floor on Sears’s behalf.”
FIRST COURT OF APPEALS
In re Vantage Drilling International, No. 01-17-00592-CV, 2018 WL 2666945 (Tex. App.—Houston [1st Dist.] June 5, 2018, orig. proceeding)
The court refused to grant mandamus relief reversing a trial court’s order compelling arbitration when the party opposing arbitration failed to prove that a final appeal would be inadequate to review the alleged arbitration waiver.
Martinez Partners, a law firm, filed suit against Vantage, a former client, over the non-payment of attorney’s fees. The parties’ engagement agreements contained arbitration provisions which neither party initially invoked. The parties litigated heavily for nearly a year. Then, following a hearing in which the trial judge made comments that cast doubt upon Martinez Partners’ position in the litigation, Martinez Partners moved to compel arbitration. Vantage opposed, arguing that Martinez Partners had either expressly or impliedly waived arbitration. The trial court compelled arbitration, and Vantage filed a petition for writ of mandamus.
The court first examined the standards for granting mandamus following an order compelling arbitration. When reviewing an order compelling arbitration, mandamus is generally unavailable, and the party seeking mandamus must meet a “particularly heavy” burden. Any doubts, including doubts regarding waiver, should be resolved in favor of arbitration. The court acknowledged that post-arbitration review may create some wasting of resources, but noted that allowing pre-arbitration review in all cases would create needless and costly battles in the appellate courts. The court then looked at the specific facts of the case to see whether Vantage could meet its “particularly heavy” burden.
The main purported benefit of avoiding arbitration, according to Vantage, was the avoidance of further expense and delay. However, standing alone, this possibility is generally not sufficient to support mandamus relief. Next, Vantage argued that the time and money already spent in litigation would be wasted if arbitration was compelled. The court rejected that argument holding that the discovery conducted during litigation would also benefit the arbitration and no special circumstances existed that would cause Vantage to suffer prejudice if arbitration was compelled. Finally, Vantage argued that mandamus should issue as a result of Martinez Partners’ “impermissible tactical conduct.” The court held that there was no authority supporting the argument that tactical conduct trumps the legislature’s strong preference in favor of arbitration as an alternative vehicle for settling disputes. The court denied mandamus.
Justice Keyes dissented. She would have held that Martinez Partners’ conduct met all the elements of waiver by substantial litigation conduct set by Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008) and Henry v. Cash Biz, LP, —S.W.3d—, No. 16-0854, 2018 WL 1022838 (Tex. Feb. 23, 2018), and that mandamus relief was appropriate to enforce the waiver. She summarized her position as follows: By approving the trial court’s order sending this case to arbitration, the majority allows the real party in interest to take the spoils of its abusive discovery practices over almost a year and its insight into the trial court’s skeptical perception of its case gained through litigation conduct into its newly-sought arbitration proceedings, thereby avoiding the trial court’s ruling on Vantage’s motion for partial summary judgment filed against it and creating a new playing field.
Fuentes v. Zaragoza, No. 01-16-00251-CV, 2018 WL 2437120 (Tex. App.—Houston [1st Dist.] May 31, 2018, no pet. h.)
A trial court could not render judgment against entities as alter egos of a named defendant when those entities were nonsuited prior to trial.
Evangelina Zaragoza filed for divorce from Miguel Zaragoza Fuentes. Miguel contested personal jurisdiction and, after losing his challenge, did not appear for trial. Evangelina took a default judgment against him. Miguel is a very successful businessman who owns numerous entities. The default judgment awarded Evangelina $537 million in damages and a 50% interest in 89 business entities, on the grounds that they were Miguel’s alter-egos. Miguel then moved for judgment as a matter of law and filed a motion for new trial, both of which were denied. A number of Miguel’s related entities also intervened in the case and moved to set aside the alter-ego order, but the court denied those motions as well.
On appeal, Miguel and the entities made several challenges, including an argument that the trial court erred in rendering judgment against the entities as Miguel’s alter-egos. The entities argued “that (1) the trial court violated their due process rights by divesting them of their property without notice or hearing, (2) the trial court ignored rules on the joinder of necessary parties, and (3) the evidence failed to demonstrate that any of these companies were Miguel’s alter egos.” The court agreed on all points.
The court noted that one of the co-appellants was never served. The others were not put on notice that their property interests would be at stake during trial. Evangelina non-suited the entities before trial and did not furnish them with her proposed property division. Evangelina’s alter-ego theory did not relieve her of the duty to ensure that all parties were afforded notice and an opportunity to be heard. Even an entity that has been found to be an alter-ego of an individual has those rights. The court held that “all parties alleged to be part of a single enterprise must each be afforded an opportunity to defend against the claims asserted.” If an entity is not afforded notice and an opportunity to be heard, its due process rights are violated, and a court may not enter judgment against it.
Similarly, the court held that Evangelina failed to join all necessary parties to the action; therefore, the trial court erred in rendering judgment. Because all of the alleged alter-egos owned property subject to the division Evangelina requested, they were all necessary and indispensable parties without whom a judgment may not be entered.
Finally, the court held that the evidence was legally and factually insufficient to support the trial court’s alter-ego finding. The First Court reversed the trial court’s judgment.
FOURTEENTH COURT OF APPEALS
Critical Path Resources, Inc. v. Cuevas, -- S.W.3d ---, 2018 WL 1532343 (Tex. App.—Houston [14th Dist.] Mar. 29, 2018, no pet. h.).
Because the concept of superseding cause was not baked into the instruction on proximate cause given the jury, and the appellant did not argue that the sufficiency of the evidence should be determined as if the charge included an instruction on new-and-independent cause, the Court refused to consider evidence of superseding causes when evaluating the sufficiency of the evidence to support proximate causation.
Critical Path Resources is an appeal of a multi-million-dollar judgment rendered on a verdict after a wrongful-death and personal-injury trial arising from a catastrophic refinery explosion. The majority overruled Critical Path’s challenges to the sufficiency of the evidence to support the negligence and causation findings, but suggested a remittitur of a portion of the damages. The dissent would have rendered a take-nothing judgment on the basis that events after Critical Path’s negligent conduct constituted superseding causes. Appellate practitioners will be particularly interested in the Court’s analysis of the greatest relief Critical Path could receive based on its argument that the trial court erred by refusing to submit an instruction on new-and-independent cause.
In its opening brief, Critical Path argued that it was an abuse of discretion to refuse the instruction because there was evidence to support its submission. Critical Path further argued that it was entitled to a new trial because the refusal was harmful. But Critical Path did not contend, until a post-submission brief, that the sufficiency of the evidence should be evaluated as if the instruction were properly included in the charge. In this posture, the majority disagreed with the dissent’s consideration of evidence of superseding causes when reviewing the sufficiency of the evidence to support proximate causation. According to the majority, the “concept of superseding cause [was] not baked into the standard instruction on proximate cause given” to the jury. Thus, noting the “general rule” that the sufficiency of the evidence is “based on the charge as given, which in this case lacked an instruction on new and independent (or superseding) cause,” the majority rejected the dissent’s reasoning that superseding cause could be considered as a component of proximate cause. Furthermore, the majority explained, even if Critical Path had framed its appellate complaint as a sufficiency challenge, the greatest relief it could obtain was the relief it requested in its appellate brief: a new trial.
Toth v. Sears Home Improvement Products, Inc., No. 14-17-00615-CV, 2018 WL 2139285, at *1 (Tex. App.—Houston [14th Dist.] May 10, 2018, no pet. h.).
The Fourteenth Court held that the TCPA’s commercial-speech exemption, as recently construed by the Supreme Court, did not apply to a contractor’s statements recommending a third-party’s product to a homeowner.
The Texas Citizens Participation Act (“TCPA”) allows for early dismissal of claims based on certain types of communications. But the Act does not apply to claims based on some forms of commercial speech. Tex. Civ. Prac. & Rem. Code § 27.010(b). The Supreme Court recently clarified that the commercial-exemption applies when: (1) the defendant was primarily engaged in the business of selling or leasing goods, (2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant’s capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides. Castleman v. Internet Money Ltd., 61 Tex. Sup. Ct. J. 1056, 2018 WL 1975039, at *3 (Tex. Apr. 27, 2018) (per curiam). In Toth v. Sears Home Improvement Products, Inc., decided two weeks after Castleman, the Fourteenth Court determined the applicability of the commercial-speech exemption in light of the Supreme Court’s recent decision.
Winifred Langham complained that moisture was rising through wood floors that Sears sold and installed, so Sears sent an independent flooring contractor, John Toth, to investigate. Toth recommended that the floors be re-installed using a sealant product called Bostik. When Sears offered a refund instead, Langham filed suit and hired Toth to re-install the floors. Sears then sued Toth, claiming that he violated a confidentiality provision in his independent-contractor agreement by communicating with Langham.
On appeal, the Fourteenth Court determined that Toth’s statements to Langham recommending the Bostik product did not meet the second or third Castleman elements. Therefore, commercial-speech exemption did apply.
First, the Court observed there was “no indication that Toth was a seller of Bostik[,]” so his statements were “akin to expressing an opinion or evaluation about another’s product . . . , which is ordinarily protected” by the TCPA. Second, the Court reasoned that Castleman “aligns” with earlier cases requiring the statement to be made “for the purpose of securing sales in the goods or services of the person making the statement.” But here, Toth “proposed a commercial transaction to Sears—not to Langham—by recommending that Sears purchase the product and use it”; there was “no indication . . . that Toth made the Bostik statements to coax Langham into hiring him” to fix the floors. Finally, the Court concluded that Toth made the statements “while performing under the contract as Sears’s independent-contractor[,]” not in “his individual capacity as a seller of goods or services.” The “only reason he was speaking to Langham” was because Sears engaged him to do so, and there was no evidence that he was “promoting his personal business . . . instead of replacing the floor on Sears’s behalf.”
U.S. Supreme Court Treats Circuit Split by Recommending Less Vitamin C
By Mark Ritchie, Law Office of Mark Ritchie, P.C.
U.S. Supreme
Court Treats Circuit Split by Recommending Less Vitamin C
On June 14, 2018, the Court issued its
opinion in Animal Science Products, Inc.
v. Hebei Welcome Pharmaceutical Co., Ltd.,[i]
addressing a circuit split on the weight given to foreign governments’ interpretation
of their own laws in U.S. proceedings.[ii] Rejecting the more deferential standard
employed by the United States Court of Appeals for the Second Circuit,[iii]
the Court adopted an ad hoc approach affording
substantial, but not dispositive, weight to a foreign government’s interpretations
of its own law. While respecting other
nations’ views, the Animal Science
Products test guards against foreign governments that seek to influence legal
outcomes with inconsistent, implausible, or plainly disingenuous
interpretations of foreign law.
Case Background
In the underlying In re Vitamin C Antitrust Litigation, a group
of U.S.-based purchasers filed suit against four Chinese corporate sellers for
allegedly violating the Sherman Act by fixing prices and quantities of vitamin
C exported to the United States.[iv] The Chinese sellers moved to dismiss the
complaint under the act of the state doctrine, the foreign sovereign compulsion
doctrine, and principals of international comity, asserting that the price and
quantity-fixing was required under Chinese law.
The Ministry of Commerce of the People’s Republic of China filed an amicus curae brief in support of the Defendants’
motion to dismiss, asserting that under the current Chinese export system, the Defendants’
trade association is required to certify each export contract’s compliance with
coordinated quotas and price fixing standards.[v]
The District Court denied the Defendants’
motion as well as a later motion for summary judgment supported which was by an
additional statement from the Ministry and expert testimony.[vi] At trial, the jury found that the Chinese
sellers had agreed to fix prices and quantities of vitamin C exports and also found
that the sellers were not compelled to enter into those agreements. The trial court entered judgment for the
purchasers, awarding $147 million in treble damages and enjoining further
violation of the Sherman Act by the Defendants.[vii]
The Second Circuit subsequently
reversed on grounds that the Defendants’ motion to dismiss should have been
granted and that the District Court erred in not deferring to the Ministry’s
characterization of Chinese law. Mindful
of competing lines of authority on the issue,[viii]
the Court of Appeals for the Second Circuit settled on a highly deferential approach,
consistent with both the seminal case of United
States v. Pink[ix]
and Second Circuit precedent on determining foreign law: [x]
[W]hen a foreign government, acting through
counsel or otherwise, directly participates in U.S. court proceedings by
providing a sworn evidentiary proffer regarding the construction and effect of
its laws and regulations, which is reasonable under the circumstances
presented, a U.S. court is bound to defer to those statements. If deference by any measure is to mean
anything, it must mean that a U.S. court not embark on a challenge to a foreign
government’s official representation to the court regarding its laws or
regulations, even if that representation is inconsistent with how those laws
might be interpreted under the principles of our legal system.[xi]
The Animal
Science Products Approach – Equal Parts Respect, Flexibility, and Skepticism
In its historical analysis, the Court
noted that under common law, issues of foreign law were treated as questions of
fact, which had “a number of undesirable practical consequences.”[xii] With the adoption of Federal Rule of Civil
Procedure 44.1, determinations of foreign law were transformed into questions
of law subject to de novo review.[xiii] This shift in characterization also freed
courts to consider all relevant materials, not just materials submitted by the
parties, without regard to admissibility under the Federal Rules of Evidence.[xiv]
Writing for the unanimous Court,
Justice Ginsburg acknowledged that federal courts should “carefully consider a
foreign state’s views about the meaning of its own laws” in recognition of “the
spirit of international comity.”[xv] Even so, comity does not necessarily mean
that a foreign state’s interpretation of its own law should control, and “the
appropriate weight [given the foreign state’s characterization] will depend
upon the circumstances.”[xvi] Indeed, Justice Ginsburg states explicitly
that “a federal court is neither bound to adopt the foreign government’s
characterization[,] nor required to ignore other relevant materials,”[xvii]
especially when the circumstances surrounding the foreign government’s
submission are suspicious.[xviii] Having rejected the deferential approach of the
Second Circuit in Vitamin C, the
Court instead attempts to provide a practical (if entirely ad hoc) framework for analyzing a foreign government’s submission:
Given the world’s many and diverse legal
systems, and the range of circumstances in which a foreign government’s views
may be presented, no single formula or rule will fit all cases in which a
foreign government describes its own law.
Relevant considerations include the statement’s clarity, thoroughness,
and support; its context and purpose; the transparency of the foreign legal
system; the role and authority of the entity or official offering the
statement; and the statement’s consistency with the foreign government’s past
positions.[xix]
Practical
Effects of Animal Science Products
Setting aside any long-term impact the opinion
might have on international relations, the ad
hoc approach adopted by Animal
Science Products is both helpful and problematic. On the one hand, the Court made clear that a
foreign government’s disingenuous assertions are not automatically entitled to
deference. On the other hand, federal
courts were already empowered to reject such submissions even under the highly
deferential Vitamin C standard.[xx]
Ultimately, the importance of the Animal Science Products opinion stems
less from its resolution of a relatively minor split of authority and more from
the difficult questions it leaves unanswered.
While the opinion lists a number of “relevant considerations” that
should be taken into account when a foreign government offers interpretation of
its own laws, the Court failed to provide even general direction on how these
considerations should be analyzed. Thus,
Animal Science Products opens the
door to more frequent appellate challenges of rulings, leaving us to wait for
guidance and clarity from future opinions.
[i]
138 S. Ct. 1865, 1873 (2018).
[ii]
The cases listed by the Court establishing the split of authority differ from
those mentioned by the Second Circuit in In
re Vitamin C Antitrust Litigation, 837 F.3d 175 (2d Cir. 2016). In comparison to Vitamin C; the Court raises cases from the Seventh, Eleventh, and
D.C. Circuit Courts of Appeals adopting less deferential approaches to the
foreign law question at issue here. Id. at 1872 n.3 (citing In re Oil Spill by Amoco Cadiz, 954 F.2d
1279 (7th Cir. 1992); United States v.
McNab, 331 F.3d 1228 (11th Cir. 2003); and McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101
(D.C. Cir. 2001), vacated in part on
other grounds, 320 F.3d 280 (D.C. Cir. 2003)).
[iii]
In re Vitamin C Antitrust Litig., 837
F.3d 175 (2d Cir. 2016).
[iv]
Animal Sci. Products, 138 S. Ct. at
1870.
[v]
Id. at 1870 and n.1.
[vi]
Id. at 1871.
[vii]
Id. at 1871–72.
[viii]
Under the Second Circuit’s analysis, several cases have interpreted the Court’s
decision in United States v. Pink as
requiring that courts accept official statements or declarations from a foreign
government clarifying its laws as “conclusive,” while others have suggested
that such statements or declarations are only entitled to a measure of deference.
In
re Vitamin C Antitrust Litigation, 837 F.3d at 186–87 (citing cases).
[ix]
315 U.S. 203 (1942).
[x]
Specifically, Karaha Bodas Co. v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 313 F.3d 70 (2d Cir.
2002).
[xi]
In re Vitamin C Antitrust Litig., 837
F.3d at 189.
[xii]
Animal Science Products, 138 S. Ct.
at 1872–73.
[xiii]
Id. at 1873.
[xv]
Id. (internal quotes omitted).
[xvi]
Id.
[xvii]
Id.
[xviii]
Id.
In context, Justice Ginsburg’s comment that “offer[ing] an account in
the context of litigation . . . may be cause for caution in evaluating the
government’s submission,” id., seems
deliberately ironic.
[xix]
Id. at 1873–74.
[xx]
See In re Vitamin C Antitrust Litigation,
837 F.3d at 189 (requiring deference only when foreign government’s
interpretation is “reasonable under the circumstances presented”).
Oral Argument: When You Need It, How to Get It, and What to Do Once It’s Granted
By Justice Evelyn V. Keyes, Justice, First Court of Appeals and Angela W. Spoede, Staff Attorney
Oral argument is a frequent topic of discussion at every CLE presentation and bench-bar networking event. Appellate attorneys want to know how they can get oral argument granted more often, and they want to know how they can use oral argument to their client’s best advantage. Lawyers seem hesitant to accept that the vast majority of advocacy at the appellate level must happen in writing. But, for the few cases where oral argument might be appropriate, being able to determine when you have a case in which oral argument would be helpful, or even necessary, is the first step in getting a request for oral argument granted.
There are a variety of reasons why courts do not grant oral argument as often as attorneys would like. Most of them boil down to one prime consideration: economy of judicial resources. The First Court of Appeals sees more than one thousand cases filed each fiscal year. There simply is not enough time to prepare for and hear oral argument in even half of those cases and then resolve them with any degree of efficiency. And the reality is that, in most cases, oral argument is simply not necessary—or even helpful—in resolving the issues raised by the parties. It is frustrating for judges to listen to attorneys rehash arguments made just as effectively in the briefing, or worse, to have the issues even more muddled after argument than they were before.
The all-important first step to getting oral argument is determining whether your case is an appropriate candidate. Courts are more willing to invest the time and resources involved in hearing oral argument in complex cases—such as cases involving multi-party, long-term business relationships; cases implicating complicated regulatory or administrative schemes; or cases construing voluminous contracts. Oral argument is also helpful in cases that are novel in some respect, whether because they present unique facts that do not fit neatly into standards set by established authority, involve interpretation of new statutes or case law, or require application of niche law. Courts understand that each case is significant to the parties and attorneys involved in it, but oral argument will not be appropriate in frivolous or relatively simple cases. Nor will courts grant requests for oral argument in cases where the dispositive issues are adequately presented by the briefing and well-established authority. See TEX. R. APP. P. 39.1.
Courts appreciate the effort attorneys put into making realistic evaluations regarding whether and why their cases are appropriate for oral argument. This is especially valuable for an appellee to keep in mind—you might be able to save your clients time and money by clearly stating why the case does NOT merit oral argument.
Another practical tip: if you want oral argument, you must say so. Although courts “may direct [a] party to appear and argue” even if it has waived oral argument by failing to request it on the front cover of the brief (see TEX. R. APP. P. 39.7), they almost never do. Texas Rule of Appellate Procedure 38.1(e) provides that briefs “may” include a statement explaining why oral argument should or should not be permitted, but a better practice is to consider a well-crafted statement regarding oral argument as necessary to obtaining it (or, in some cases, to resisting it when it would not benefit your client).
In writing your statement regarding oral argument, you must clearly and succinctly explain the significance of your issues (or the non-significance of your opponent’s issues). See TEX. R. APP. P. 38.1(e) (limiting statement regarding oral argument to no more than one page). Appellate attorneys frequently waste the opportunity presented in this portion of the brief by stating in a conclusory fashion that “oral argument would greatly aid the Court’s decisional process in this complex case.” Be specific when setting out the precise nature of the case’s complexity or novelty. Point out the nuances of the case that might be hard to spot on an initial reading or the specific contractual or statutory language that presents a unique challenge. Do not underestimate the importance of the rest of your brief in convincing a court that oral argument is warranted. Briefs that reflect a solid appellate strategy and clear legal argument inspire confidence in the ability of the practitioner to present an effective and helpful oral argument.
Effective use of oral argument requires that you consider the purpose of oral argument. Keep in mind that, even when oral argument is helpful, it is almost never dispositive. The judges hearing the case have already read the briefs, and usually at least some portions of the record, prior to taking the bench at oral argument. In most cases, judges already have developed some thoughts regarding how they are going to rule heading into oral argument, and the lawyers’ efforts serve to clarify or elucidate arguments already raised in the briefs.
Finally, make the most of your oral argument by focusing on your case’s central issues. Trust your briefing to address the minutiae of the case and use your precious time to focus the panel’s attention on the most important factors in your case, including clearing up any vague, confusing, or weak arguments. Oral argument is a great opportunity to expand on your strongest authorities, explaining in detail why and how they help your case, and it is the time to provide the court with the information it needs to address the weaknesses in your case. Be prepared to answer questions and actually answer the questions that are asked—know the record and controlling law thoroughly. And be courteous to the Court and your opponents.
Although courts may not grant oral argument as often as appellate attorneys might wish, understanding the factors that courts consider in granting oral argument will improve your odds of getting oral argument granted in your case. And careful consideration of the role oral argument can play in your case will improve your odds of winning on appeal.
Oral argument is a frequent topic of discussion at every CLE presentation and bench-bar networking event. Appellate attorneys want to know how they can get oral argument granted more often, and they want to know how they can use oral argument to their client’s best advantage. Lawyers seem hesitant to accept that the vast majority of advocacy at the appellate level must happen in writing. But, for the few cases where oral argument might be appropriate, being able to determine when you have a case in which oral argument would be helpful, or even necessary, is the first step in getting a request for oral argument granted.
There are a variety of reasons why courts do not grant oral argument as often as attorneys would like. Most of them boil down to one prime consideration: economy of judicial resources. The First Court of Appeals sees more than one thousand cases filed each fiscal year. There simply is not enough time to prepare for and hear oral argument in even half of those cases and then resolve them with any degree of efficiency. And the reality is that, in most cases, oral argument is simply not necessary—or even helpful—in resolving the issues raised by the parties. It is frustrating for judges to listen to attorneys rehash arguments made just as effectively in the briefing, or worse, to have the issues even more muddled after argument than they were before.
The all-important first step to getting oral argument is determining whether your case is an appropriate candidate. Courts are more willing to invest the time and resources involved in hearing oral argument in complex cases—such as cases involving multi-party, long-term business relationships; cases implicating complicated regulatory or administrative schemes; or cases construing voluminous contracts. Oral argument is also helpful in cases that are novel in some respect, whether because they present unique facts that do not fit neatly into standards set by established authority, involve interpretation of new statutes or case law, or require application of niche law. Courts understand that each case is significant to the parties and attorneys involved in it, but oral argument will not be appropriate in frivolous or relatively simple cases. Nor will courts grant requests for oral argument in cases where the dispositive issues are adequately presented by the briefing and well-established authority. See TEX. R. APP. P. 39.1.
Courts appreciate the effort attorneys put into making realistic evaluations regarding whether and why their cases are appropriate for oral argument. This is especially valuable for an appellee to keep in mind—you might be able to save your clients time and money by clearly stating why the case does NOT merit oral argument.
Another practical tip: if you want oral argument, you must say so. Although courts “may direct [a] party to appear and argue” even if it has waived oral argument by failing to request it on the front cover of the brief (see TEX. R. APP. P. 39.7), they almost never do. Texas Rule of Appellate Procedure 38.1(e) provides that briefs “may” include a statement explaining why oral argument should or should not be permitted, but a better practice is to consider a well-crafted statement regarding oral argument as necessary to obtaining it (or, in some cases, to resisting it when it would not benefit your client).
In writing your statement regarding oral argument, you must clearly and succinctly explain the significance of your issues (or the non-significance of your opponent’s issues). See TEX. R. APP. P. 38.1(e) (limiting statement regarding oral argument to no more than one page). Appellate attorneys frequently waste the opportunity presented in this portion of the brief by stating in a conclusory fashion that “oral argument would greatly aid the Court’s decisional process in this complex case.” Be specific when setting out the precise nature of the case’s complexity or novelty. Point out the nuances of the case that might be hard to spot on an initial reading or the specific contractual or statutory language that presents a unique challenge. Do not underestimate the importance of the rest of your brief in convincing a court that oral argument is warranted. Briefs that reflect a solid appellate strategy and clear legal argument inspire confidence in the ability of the practitioner to present an effective and helpful oral argument.
Effective use of oral argument requires that you consider the purpose of oral argument. Keep in mind that, even when oral argument is helpful, it is almost never dispositive. The judges hearing the case have already read the briefs, and usually at least some portions of the record, prior to taking the bench at oral argument. In most cases, judges already have developed some thoughts regarding how they are going to rule heading into oral argument, and the lawyers’ efforts serve to clarify or elucidate arguments already raised in the briefs.
Finally, make the most of your oral argument by focusing on your case’s central issues. Trust your briefing to address the minutiae of the case and use your precious time to focus the panel’s attention on the most important factors in your case, including clearing up any vague, confusing, or weak arguments. Oral argument is a great opportunity to expand on your strongest authorities, explaining in detail why and how they help your case, and it is the time to provide the court with the information it needs to address the weaknesses in your case. Be prepared to answer questions and actually answer the questions that are asked—know the record and controlling law thoroughly. And be courteous to the Court and your opponents.
Although courts may not grant oral argument as often as appellate attorneys might wish, understanding the factors that courts consider in granting oral argument will improve your odds of getting oral argument granted in your case. And careful consideration of the role oral argument can play in your case will improve your odds of winning on appeal.
Did You Know?
by JoAnn Storey
Did You Know - -
If one or two alternate jurors are to be impaneled, each side is entitled to one additional peremptory challenge in addition to those otherwise allowed by law. Tex. Gov’t Code Ann. § 62.020(e).
If three or four alternate jurors are to be impaneled, each side is entitled to two additional peremptory challenges in addition to those otherwise allowed by law. Id.
The additional peremptory challenge(s) may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror. Id.
Did You Know - -
If one or two alternate jurors are to be impaneled, each side is entitled to one additional peremptory challenge in addition to those otherwise allowed by law. Tex. Gov’t Code Ann. § 62.020(e).
If three or four alternate jurors are to be impaneled, each side is entitled to two additional peremptory challenges in addition to those otherwise allowed by law. Id.
The additional peremptory challenge(s) may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror. Id.
Oral Argument: Present to Help the Court
by Nicholas Bruno, Beck Redden LLP.
There are scores of articles from many far more experienced than this writer—including from U.S. Supreme Court Justices—providing advice on how to present an oral argument. See, e.g., John Roberts, Chief Justice Roberts on Oral Argument, available at https://www.youtube.com/watch?v=UJQ7Ds4nAmA. Adding another article to that excellent advice is a needless task and one that this paper does not intend to undertake.
Instead, this paper focuses on this author’s approach to preparing for oral argument as a young advocate and how clerking for an appellate court shaped that experience.
The goal of oral argument, like the goal of any advocacy in a court, should be to aid the court in reaching its decision. By focusing on making the court’s job easier, an advocate maximizes his client’s chances of success.
That goal is cliché and nearly universally acknowledged. But that goals begs the question of how to do that in the context of an appellate oral argument.
To answer that question, an advocate must first understand how oral argument fits into the court’s decision-making process. Clerking at an appellate court gives you firsthand experience with this aspect of oral argument.
Oral argument occurs after most of the work for a case has been completed. The arguments have been made by the parties in their briefs. The justices have read the briefs and the controlling authorities. A staff attorney has thoroughly read that same material and drafted—depending on the court—either a memo on the case or a draft opinion. The justices on the panel have held “conference,” that is, a meeting of the panel to discuss their thoughts on a case.
Because most of the work has been completed, often, at this point, the justices have a fairly decent idea of their opinion and misgiving on the arguments.
But that does not mean that the work for oral argument is done. The court is still preparing for oral argument. As a clerk, in drafting the memo on the case, you have likely spent more time on the case than the judge. Accordingly, your role is to ensure that the judge has the relevant information about the case so that the judge can test the limits and strengths and weaknesses of a particular position. The law clerk must ensure that the judge is up to speed on the case to ask questions that will aid in drafting the final opinion. That requires the court to consider the impact that the opinion will have, not only on the current case, but also on cases going forward.
That process should influence an advocate’s preparation for oral argument. As a starting point, the advocate should not be less prepared than the justice. That means that the advocate should know the arguments in the briefing inside and out. The advocate should know the record. And the advocate should know the controlling authority.
From a practical perspective, to accomplish that goal, the advocate should carefully read through the briefing. He should know the responses to each of the argument raised in his opponent’s briefing. He should read the cases cited both in his briefing and the opponent’s briefing.
But it is worth emphasizing that this is merely a starting point. At this point, the advocate is only as prepared as the court. If the advocate is to help the court, he must be prepared to answer the court’s questions.
After getting up to speed on the briefing and case law, the advocate should think through the case critically. An advocate should identify the weaknesses of his position. He should ask himself where he is asking the court to go beyond current precedent. He should be able to convince the court why doing so is the better option for the jurisprudence. He should identify the adverse case law and ask himself what his opponent would say about the case. He should identify the opponent’s strengths and have answers to those positions.
These steps need not—in fact most often should not—be conducted alone. It is often helpful to enlist the help of another attorney. Most helpful is another attorney who has not worked on the case. Ask that attorney, either in a formal moot court setting or even informally, to give you his thoughts on the strengths and weaknesses of the arguments in the briefing.
After identifying the weaknesses in his position, the advocate should know his position’s limits. It is important to know where the line must be drawn for his client to win so that he can, if necessary, tactically give up ground.
By this point, an advocate should know the likely questions that he will be asked at oral argument. The advocate should be prepared to respond to these questions. Many advocates have different methods to prepare their answers. Some use flash cards. Others outline the answer by issue. There is no right or wrong way. But it is important to prepare answers that will persuade the court.
Persuading an appellate court means helping the court in drafting its final decision. It is not like persuasion in other contexts, that often include emotional or rhetorical appeals. Being helpful to the court requires that an advocate be upfront with the court with both the strengths and weaknesses of his position.
Finally, the advocate is ready for oral argument. Presenting the argument should be the easy part for a prepared advocate. Again, several lawyers have provided tips on speaking presentation, court etiquette, and so forth. That advice is important to heed.
But, when in doubt, an advocate should remember what argument is about: not scoring rhetorical points (not important to the court) or making arguments (which should have occurred in the briefs), but helping the court and answering its questions.
There are scores of articles from many far more experienced than this writer—including from U.S. Supreme Court Justices—providing advice on how to present an oral argument. See, e.g., John Roberts, Chief Justice Roberts on Oral Argument, available at https://www.youtube.com/watch?v=UJQ7Ds4nAmA. Adding another article to that excellent advice is a needless task and one that this paper does not intend to undertake.
Instead, this paper focuses on this author’s approach to preparing for oral argument as a young advocate and how clerking for an appellate court shaped that experience.
The goal of oral argument, like the goal of any advocacy in a court, should be to aid the court in reaching its decision. By focusing on making the court’s job easier, an advocate maximizes his client’s chances of success.
That goal is cliché and nearly universally acknowledged. But that goals begs the question of how to do that in the context of an appellate oral argument.
To answer that question, an advocate must first understand how oral argument fits into the court’s decision-making process. Clerking at an appellate court gives you firsthand experience with this aspect of oral argument.
Oral argument occurs after most of the work for a case has been completed. The arguments have been made by the parties in their briefs. The justices have read the briefs and the controlling authorities. A staff attorney has thoroughly read that same material and drafted—depending on the court—either a memo on the case or a draft opinion. The justices on the panel have held “conference,” that is, a meeting of the panel to discuss their thoughts on a case.
Because most of the work has been completed, often, at this point, the justices have a fairly decent idea of their opinion and misgiving on the arguments.
But that does not mean that the work for oral argument is done. The court is still preparing for oral argument. As a clerk, in drafting the memo on the case, you have likely spent more time on the case than the judge. Accordingly, your role is to ensure that the judge has the relevant information about the case so that the judge can test the limits and strengths and weaknesses of a particular position. The law clerk must ensure that the judge is up to speed on the case to ask questions that will aid in drafting the final opinion. That requires the court to consider the impact that the opinion will have, not only on the current case, but also on cases going forward.
That process should influence an advocate’s preparation for oral argument. As a starting point, the advocate should not be less prepared than the justice. That means that the advocate should know the arguments in the briefing inside and out. The advocate should know the record. And the advocate should know the controlling authority.
From a practical perspective, to accomplish that goal, the advocate should carefully read through the briefing. He should know the responses to each of the argument raised in his opponent’s briefing. He should read the cases cited both in his briefing and the opponent’s briefing.
But it is worth emphasizing that this is merely a starting point. At this point, the advocate is only as prepared as the court. If the advocate is to help the court, he must be prepared to answer the court’s questions.
After getting up to speed on the briefing and case law, the advocate should think through the case critically. An advocate should identify the weaknesses of his position. He should ask himself where he is asking the court to go beyond current precedent. He should be able to convince the court why doing so is the better option for the jurisprudence. He should identify the adverse case law and ask himself what his opponent would say about the case. He should identify the opponent’s strengths and have answers to those positions.
These steps need not—in fact most often should not—be conducted alone. It is often helpful to enlist the help of another attorney. Most helpful is another attorney who has not worked on the case. Ask that attorney, either in a formal moot court setting or even informally, to give you his thoughts on the strengths and weaknesses of the arguments in the briefing.
After identifying the weaknesses in his position, the advocate should know his position’s limits. It is important to know where the line must be drawn for his client to win so that he can, if necessary, tactically give up ground.
By this point, an advocate should know the likely questions that he will be asked at oral argument. The advocate should be prepared to respond to these questions. Many advocates have different methods to prepare their answers. Some use flash cards. Others outline the answer by issue. There is no right or wrong way. But it is important to prepare answers that will persuade the court.
Persuading an appellate court means helping the court in drafting its final decision. It is not like persuasion in other contexts, that often include emotional or rhetorical appeals. Being helpful to the court requires that an advocate be upfront with the court with both the strengths and weaknesses of his position.
Finally, the advocate is ready for oral argument. Presenting the argument should be the easy part for a prepared advocate. Again, several lawyers have provided tips on speaking presentation, court etiquette, and so forth. That advice is important to heed.
But, when in doubt, an advocate should remember what argument is about: not scoring rhetorical points (not important to the court) or making arguments (which should have occurred in the briefs), but helping the court and answering its questions.
Subscribe to:
Posts (Atom)