Features for March 2019

Welcome to the March 2019 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

by Chief Justice Kem Thompson Frost, Fourteenth Court of Appeals

by Justice Evelyn Keyes, First Court of Appeals, Houston

by Jo Ann Storey

by Jill Schumacher, Daniels & Tredennick, LLP

by Jill Schumacher, Daniels & Tredennick, LLP

by Rachel Stinson, Morgan, Lewis & Bockius, LLP

Kyle Lawrence, Beck Redden, LLP

by James Marrow, Hogan & Hogan

A look at the upcoming CLE luncheon for the
HBA Appellate Practice Section and the 28th Annual Appellate Judicial Reception

Did You Know?

Did you know?

by JoAnn Storey

A defendant is not required to object to a plaintiff’s omission of an independent theory of recovery in the jury charge. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex. 2017).

But, the broad proclamation in United Scaffolding that a defendant is not required to object that the charge is not “supported by the plaintiff’s pleadings or the evidence adduced at trial,” id., must be kept in context.

In Scott v. Atchison, T. & S. F. Ry., 572 S.W.2d 273, 277 (Tex.1978), the defendant objected that the broadly-submitted negligence question:

“[P]ermits the Jury to . . . hold the Defendant liable upon some basis neither pled nor proved by Plaintiff....................................... Such Issue should be limited to the acts or
omissions pled by Plaintiff to constitute negligence and concerning which there is some proof to support the submission of an issue.”

The court observed that it was “the first time that such two-fold objection to a broad and unlimited submission of negligence has been clearly presented to this Court since the 1973 amendment” to the rules allowing broad-form submission. Id.

The court held that “when one or more pleaded acts or omissions are unsupported by evidence and the record contains evidence of other possible negligent acts or omissions which were not pleaded, failure to limit the broad ultimate fact issue to acts or omissions which were raised by both pleadings and proof violates Rule 277 and is error.” Id.

In reaching its holding, the court made the following important observations:

The pleadings of the parties still furnish the blueprint for the charge.

In the absence of trial by consent, a judgment not supported by the pleadings is erroneous.

Under Scott’s lesson, the cautious practitioner will object to a broad-form question that is so broad that it allows the jury to find against a defendant on a theory that is not pleaded and is not supported by the evidence.

Inside Judicial Internships at the Houston Courts of Appeals

Inside Judicial Internships at the Houston Courts of Appeals
Kem Thompson Frost,
Chief Justice, Fourteenth Court of Appeals

What are our courts doing to help prepare the next generation of lawyers and judges for the appellate arena? For the past several years, Texas’s First and the Fourteenth Courts of Appeals have combined forces to plan and grow a joint judicial internship program for law students.  The two Houston-based courts also participate in the Rice University Judicial Internship Program for college juniors and seniors interested in pursuing legal careers.  The overarching goal of both programs is to provide students with opportunities for experiential learning in a court setting.

By working collaboratively, the two courts can give students greater interaction with judges and more opportunities to learn. The joint program offers two multi-week summer terms. Focused on equipping law students for their professional journeys, the courts’ combined eighteen justices engage interns through a series of sessions designed not only to build practice skills but also to foster professionalism and encourage participation in the legal community. Key objectives include helping students to develop proficiencies, solve legal problems, and reflect on the values and responsibilities of the legal profession.

Interns get a real behind-the-scenes look at the operations and interworking of a state intermediate appellate court. They interact with judges and staff on a range of assignments. The nature of assignments varies from chambers to chambers but usually includes conducting legal research, performing citation checks, reviewing records, preparing memoranda to assist the court in processing opinions, and assisting with writing, editing, and proofreading of the court’s work product.  Yet, the focus in not on what the interns contribute but on what they take away.

Experiential Learning
Judges and court staff understand that internships are most successful when seasoned professionals take time to explain processes and procedures, discuss expectations, and give meaningful feedback on assignments. When feasible, the courts’ interns work on a mix of civil and criminal projects that provide opportunities for both written and oral presentations. Throughout the multi-week term, interns participate in a series of sessions designed to help them hone the oral and written communication skills that are so essential to appellate practice.
Legal Writing. The courts kick off the first week with a two-part, judge-taught session on legal writing. The aim is to help interns develop habits that will make their writing more reader-focused. Judicial instructors emphasize the importance of building context, maximizing clarity, and writing concisely.   
Legal Research. Early in each summer session court liaisons accompany interns on a tour of the nearby Harris County Law Library, where they get a crash course on the vast resources available there. Most interns have little or no practical experience with electronic legal research, so the court provides entry-level, hands-on Westlaw training and staff attorneys follow up with small-group training on how to use terms and connectors for electronic legal research.
Oral Presentations. The Fourteenth’s interns work in two or three-person teams to plan and deliver oral presentations on recent developments in the law.  Dressed in courtroom attire, they make formal presentations to an audience of judges and court staff, in the courtroom.  The exercise requires students to work with their counterparts from other law schools in distilling complex material into a ten-minute presentation.

Prompt, constructive feedback on assigned tasks advances the learning process. Judges and professional staff know firsthand the importance of giving close attention to interns’ professional development so that students emerge from the internship better prepared to begin their legal careers. Judges and staff want every intern to leave the court knowing the value of strong mentorship.

“Tell me and I forget, teach me and I may remember, involve me and I learn.”
                                                                        ―Benjamin Franklin

Opportunities to Observe

The Houston courts of appeals’ joint program gives interns plenty of opportunities to observe professionals in action, not just in the appellate arena but also in trial and specialty courts. 
Appellate Courts. The courts provide a calendar of all scheduled oral arguments in the First and the Fourteenth so that all interns can observe even if they are not working on the docketed cases.  Some panels allow interns to sit in on pre- and post-submission conferences, when appropriate. Some interns get to provide a summary of the facts or procedural background or present the chambers’ position or recommendation on an issue.
Trial Courts. Justices from the First and Fourteenth work with Harris County district and county court judges to provide interns with opportunities to observe trial courts in session. Members of the Houston courts who formerly served on the trial bench usually arrange trial-observation opportunities and often accompany the interns to give them a play-by-play commentary.
Specialty Courts. Interns also get to learn about specialty courts. Judges host a “Lunch and Learn” session to give students an overview of the various Harris county specialty courts and then take them down the street to see firsthand how these unique courts work and what they accomplish.

Years in the making, the joint program features an impressive offering of intern activities. The First and the Fourteenth combine talents and areas of expertise to present panel discussions, roundtables, and question-and-answer sessions on a range of topics. Individually, each court also offers opportunities for planned gatherings in smaller settings. The diversity of backgrounds and experiences among the justices always provides a rich resource for interns whatever their aspirations or fields of interest. This coming summer the courts’ ten new appellate justices will bring new insights and perspectives to this legacy program.

Scheduled Events

Each week interns attend judge-taught programs designed to answer common questions about appellate practice, Houston’s legal community, and how to develop the skills to succeed in the practice of law. The formats vary; some sessions feature panelists that provide advice and practice tips for those new to the profession. Other segments focus on Texas’s constitution, court structure, and judiciary. Some feature an inside look at Texas courts, and still others give important information about attorney wellness.
Here is a sampling of offerings:
Do’s, Don’ts, and Donuts. Interns meet with judges over coffee and donuts for informal mentoring sessions focused on professionalism and civility in trial and appellate courts.
Mentoring Messages. Students meet with judges in large-group gatherings to discuss such topics as opportunities for professional growth and development in the Houston legal community, participation in bar activities and professional groups, pro bono service and other volunteer opportunities, and the importance of preparation, skill building, goal setting, career planning, and mentoring.
Roundtables. Groups of judges address topics of interest in a panel-discussion format, usually with a moderator. Roundtables provide the ideal venue for inquisitive interns to open up a dialogue among roundtable participants.  Topics include such things as achieving career milestones in the first years of practice, establishing mentoring relationships, forming good work habits, making court appearances, building professional relationships through service opportunities, and getting plugged into the workplace and profession.
All About Appellate Practice. One or more judges team teach two sessions devoted to the appellate process, walking interns through the life cycle of a judicial opinion and covering the basics of both brief writing and oral argument.
All About Texas Courts. In most sessions, interns get to hear from one or more judges on Texas’s high courts. Special guests from the Supreme Court of Texas and the Court of Criminal Appeals of Texas come to Houston to give program participants a glimpse into the roles and operations of those courts. Interns also get to hear from civil and criminal judges sitting on the Harris County trial bench.   

Knowing students’ vocational goals helps to facilitate and enhance judicial mentorship. At the outset, judges and chambers staff help students identify their interests. They set aside time to reflect with the interns about the particular goals of each intern in the chambers. The Fourteenth Court schedules “Chambers Chats” – small-group gatherings that allow more focused judicial interaction.  Judges meet with two or three interns from other chambers for about half an hour to talk more specifically about the students’ vocational goals. Each intern participates in two or more chambers chats. 

Members of the courts’ professional staff also take on mentoring and teaching roles. Some staff attorneys, many of whom have clerked for the Supreme Court of Texas, the Fifth Circuit, or other state or federal courts, host a “Coffee Talk” to answer questions about court careers.   

On-Boarding and Supervision
Interns get the most out of the experience when they arrive well-informed and well-equipped.  The courts provide a joint orientation that includes sessions on court confidentiality, processes and procedures, conflicts of interest, state rules, and courthouse safety and security. Chambers staff helps with assimilation by providing an overview of each chambers’ operations and procedures. 

Staff attorneys in the chambers of the assigned justice or members of the court’s central staff supervise the interns’ day-to-day work.  Judges meet with interns to provide individual feedback on completed assignments. The courts expect interns to attend the orientation and scheduled events, participate in activities, follow court rules, and keep court confidences.

The success of the courts’ judicial internship programs is due in good measure to the efforts of the First and Fourteenth’s chief staff attorneys, who work closely with law school administrators, facilitate the intern on-boarding process, and oversee day-to-day activities.

Reach and Impact

The Houston courts of appeals have expanded the reach of the joint program by opening the large-group sessions to interns working in the Harris County trial courts. When trial-court interns see the presentations, they often apply to get an appellate internship the following summer. Interest in the First-Fourteenth joint program grows every year.

Tailored programming and robust participation by judges and members of the courts’ professional staffs have swelled the joint program’s popularity. The Houston courts now draw students not only from Texas’s nine law schools but also from top-tier law schools across the country.  In recent years the Houston courts of appeals have hosted law students from Harvard, Georgetown, George Washington University, Vanderbilt, Duke, Cornell, Notre Dame, American University, The University of Chicago, The University of Virginia, The College of William & Mary, and The University of Southern California, among others. Law firms and government offices have taken notice and encourage law students to take advantage of the joint internship program. Accolades from the student participants have driven greater interest from law schools as well as other courts of appeals.  The First and the Fourteenth recently provided their judicial internship model as a resource to courts of appeals in other states.  
Ironically, in the wake of growing enthusiasm over the First-Fourteenth joint internship program, the number of available intern spots has shrunk. But the reduction, due to ripple effects from Hurricane Harvey, is only temporary.

The Harris County 1910 Courthouse provides carrels for 20-24 interns in each court and plenty of conference rooms to accommodate overflow.  In 2017, the courts together hosted more than 60 students over two summer sessions. After Hurricane Harvey struck in August 2017, the 1910 Courthouse became the temporary home to many displaced county workers who now occupy the dedicated intern spaces and some conference rooms at both the First and the Fourteenth. Due to the temporary lack of work space, the Houston courts of appeals had to reduce the number of interns for each summer session in 2018, and will have to do the same for 2019. Despite the reduced numbers, the First and the Fourteenth continue to provide a full-bodied joint internship program. Both courts look forward to returning to larger intern classes in the future, a move that will expand the reach of their efforts to help prepare the next generation of appellate lawyers and judges.

Thinking Like a Lawyer: What Legal Reason Is and How to Use It

Thinking Like a Lawyer:  What Legal Reason Is and How to Use It
by Justice Evelyn Keyes, First Court of Appeals

Every day we as lawyers think like lawyers as we advise clients and present and decide cases.  But we do not stop to ask what “thinking like a lawyer” actually is and how it turns us into leaders in all areas of society.  I think of legal reason as a form of moral reason that judges questions of right and wrong behavior under principles, rules, and standards set down and enforced by government.

Think about how a judge determines whether a defendant in a murder case should be acquitted on grounds of self-defense.

Conviction for murder requires that the State persuading a reasonable fact-finder (the judge or jury) beyond a reasonable doubt that the defendant “intentionally or knowingly” caused the death of a person.  And acquittal on grounds of self-defense requires that defense counsel show that the defendant’s conduct was justified because he reasonably believed that his action was immediately necessary to protect himself against the other person’s use, or attempted use, of unlawful force.  These are the statutory elements of the crime and defense to be proved.  Nothing else counts.

Now consider the legal reasoning that underlies this scenario.  The arguments for both murder and self-defense are logical arguments in support of the proof of the elements of the crime or defense, but that is not all.  Their proof depends on the facts and on the standard used to evaluate the evidence, not to reach a logical conclusion. (Proof beyond a reasonable doubt, proof by a preponderance of the evidence, more than a scintilla of evidence.) The soundness of the argument–hence its persuasiveness–is measured by which way the reasonable evaluation of the evidence to support proof of the elements of the statute goes.  If the evidence shows beyond a reasonable doubt that the defendant did knowingly or intentionally cause the death of another, does the evidence also show that the defendant had reason to use deadly force to stop the other person from using deadly force against him under facts of the case and the law?

This is a more complex type of argument than a purely logical arguments in proof of the elements of a crime or defense as both the facts and the standard of proof impose their own constraints of the soundness of the outcome or judgment.  So it is not the case–as some legal philosophers argue–that the law as we actually practice it can be reduced to objectively true moral propositions and that all we have to do is to reason logically from the objectively true moral proposition to the objectively true answer. 

Take, for example, the logical argument that all persons should be treated equally under the law; the defendant is a person; therefore, the defendant must be treated equally under the law.  Equally to whom?  Ah, equally to all other similarly situated persons who fall within the set of persons accused of having committed the crime of murder and having raised self-defense.  That is all logical reasoning.  But now what?

How do we logically distinguish between what this defendant did and what the defendant in another case did?  Well, we could try to completely define the set of persons who have committed murder and should be punished for it.  Immediately we are in a morass of an infinite set of possibilities, any of which could constitute a crime and some of which may not (the defendant, a first responder, shot a gunman who had just shot up a school).  We could go on and on trying to come up with a logical statutory definition for every possible act that could constitute the crime of murder and the set of defenses to that crime. But every one of our definitions would constitute a set of factual situations based on contingent empirical circumstances.  And we would still have to decide whether the empirical circumstances in any particular case were such that the defendant should be convicted of his crime or excused because his act was justified.  This would require either an objective measure of culpability that ranked every conceivable circumstance under which the crime could be committed.  Instead, we define a body of rules and precedents in case law that constrain—but do not fully define—sound answers to our legal questions.

Sooner or later we will have to give up and recognize that our propositions of law and our statutory terms and definitions and logical arguments will take us only so far.  The positive law as we actually apply it–the law written into the Constitution and laws that we construe and implement–is irreducibly interpretive, empirical, and practical.  It is also organic and dynamic. The correct answer to a legal question is only the best answer given the law and the circumstances–not the objectively true answer.  And that best answer will not necessarily hold true under different circumstances or at different times as law and circumstances change.

Finally, legal argument leads to a judgment that follows logically from the application of the law to the facts.  And this may require not only a logical argument from a given proposition of law to a valid conclusion under established facts (as in summary judgment) but the evaluation of different possible outcomes, given debated material facts, to determine which is better to maintain the functionality and integrity of the law and the soundness of its application, and so to do justice.  The evaluative element of a legal argument is what makes the argument sound and not merely valid. It is also what makes it right or wrong, good or bad in the context of the law and the facts.

That dynamic, interpretive, logical, and evaluative process ending in a sound judgment is the essence of legal argument, or applied legal reason, or, in the vocabulary of philosophy, practical reason.  What its use means on the level of a case or on the level of general laws or rules of law is that the law may be both rationally and fairly construed and applied or not, and it can always be made better when it does not rationally and fairly serve the practical purposes to which it is put.

And there is yet another level of analysis of law and legal reason that goes beyond both the adjudication of particular legal questions and the making of good laws.  This theoretical or jurisprudential level—the level of this article-- poses questions about what the law does and should do. The study and practice of law and legal reason gives lawyers the means to pose and answer these questions too.

Bottom line:  In law and legal reason, we, as lawyers and judges, have been given great tools to use in deciding which argument is better than another and then making that argument, not only in the courtroom but in the classroom, and in our personal, professional, and political lives.  We can also use these tools to make better laws for a better society.  What could be better than that?