Launched in January 2007, the Texas Appellate Law Blog was the first website of its kind to focus on Texas civil appellate practice. Its authors, all partners in Smith Law Group LLLP, offer insight and commentary on issues relevant to trial lawyers, in-house counsel, trial and appellate judges, and others interested in appellate matters.
I don’t talk politics here, but it’s hard to ignore what happened to the intermediate Texas appellate courts last night. Statewide, dozens of incumbent justices—many of whom are great at their jobs and deserved to keep them—were swept out of office, some by challengers who are either completely unknown or who have little to no experience representing clients before appellate courts.
The new justices will have to learn fast. “New judges school” and those left behind will have their hands full educating them on the finer points of their new jobs. I think we can expect delays in almost every aspect of the courts’ work and, unfortunately, panels to be divided along party lines. The Texas Supreme Court—which remains all-Republican and will not change composition come January 1—will feel the effects too.
In this new reality, I think the role of experienced appellate practitioners will be more significant than ever. We are most effective when we assist courts in understanding the case, the law, and how to reach a reasoned outcome faithful to both. Though change is hard, I plan to continue doing just that.
Justice Bob Pemberton has departed the Third Court of Appeals before his term was set to expire on December 31, 2018. Governor Abbott wasted no time appointing Mike Toth, the Republican candidate for Justice Pemberton’s open seat, to fill the vacancy. Justice Toth must defeat the Democratic candidate, Travis County District Judge Gisela Triana, to keep his new job.
Justice Pemberton served the Third Court and the people of Texas faithfully and honorably. His experience on the Court will be missed. I wish him well in the next phase of his career.
This deep into election season, it’s hard to imagine Justice Toth will learn much about being an appellate justice before finding out whether he’ll remain one. When campaigning, he’ll have the nominal advantage of being able to say he’s the incumbent. Open-seat races are generally close, though, so it will be interesting to see how he fares against Judge Triana on November 6.
This is the fifth and final installment of my series on mobile lawyering for appellate practitioners. To easily access the entire series, click here.
By this point, you should have the equipment and the software to get your work done from the road. This post discusses some special considerations for working efficiently and securely.
Troubleshooting Tech Problems
Practicing from the road requires a certain amount of independence. Working outside the office—away from coworkers who can help you troubleshoot technology problems—requires a greater degree of self-sufficiency and resourcefulness.
Most troubleshooting involves searching for well-known solutions to common problems. As funny as it sounds, this is best accomplished via Google. The better you are at solving common problems by searching Google, the easier it will be to work outside the office using only your tablet or smartphone.
If your mobile device is lost or stolen, your data should be secure enough that a third party cannot gain access to it. Obviously, that means password-protecting all of your devices.
But it also means choosing hard-to-guess passwords. Using complex passwords is often advised (e.g., Xf7<8zf$qjf89), but they’re hard to type. A simpler way to create hard-to-guess passwords is to use a passphrase.
A passphrase is a sequence of words or phrases, with spaces. For example, “Dog Missile Rainbow” is a nonsense phrase that’s easy to type, but hard to guess.
So, a password is step one. The second step is to encrypt your hard drive or device. If you do not encrypt the data on your device, then a hacker could remove the hard drive and plug it into a new device to access the data.
Encryption is easy to set up. If you aren’t sure how, then just research on the internet as discussed above. Type in the name of your device and the word “how to encrypt” and you’ll find helpful articles.
When you sign in to do your banking online, there’s a reason the site won’t let you simply type “12345678” or “password” to access your data. Complex or strong passwords reduce the chances that a hacker will be able to access your online accounts and do something malicious.
The problem with strong passwords is that they are impossible to remember. But writing them on a Post-It note stuck to your computer monitor or keeping them in the notes app on your phone is just looking for trouble.
Password managers help avoid these issues by generating strong passwords and storing them in a secure location. Without the master password—the only one you’ll have to remember—the list is locked down. By entering the master password, you enable the password manager to fill in passwords for you when logging in to certain websites.
Three popular password managers are 1Password, LastPass, and Dashlane. All are free or very affordable and will sync to mobile devices. A password manager is an investment every appellate road warrior should make.
The primary concern with online storage services is security. Anyone with your password can access all of the documents you have stored in your online document service. And if they have access, they can often easily bulk-download those documents.
So, you must ensure that mere possession of your password will not grant a hacker access to those documents. And how do you accomplish that? Use dual-factor authentication. This is security that requires more than a mere password to access an online account. The second factor required is physical possession of your smartphone.
If an important account offers dual-factor authentication, you should enable it. For example, you should set it up on all of your online document storage accounts, your financial services accounts, and your email accounts.
Here’s how dual-factor authentication works in practice. If someone tries to access an online account with dual-factor authentication enabled, and they’re using a device that has never accessed that account before, they won’t be able to get in.
For example, say that a Russian hacker has the password to your Dropbox account and tries to login from a computer in Moscow. Dropbox’s security system will detect that a new computer is accessing your account (red flag #1) from a location that has never been used before (red flag #2).
Any red flag in Dropbox’s system will cause it to send a text message to your phone with a six-digit code. And the system will inform the hacker in Moscow that they need to also enter the six-digit code. Typically, the code will only be valid for about five minutes. And if the hacker tries to guess the code and guesses wrong more than three times, the system will typically lock up your account.
Some people perceive dual-factor authentication as a hassle. And that’s true. But it’s worth the hassle because it prevents someone else from accessing your online accounts even if they have your password.
Being able to connect to the internet reliably and securely is crucial. Fortunately, you have many options. Unfortunately, not all of those options are appropriate or safe.
When traveling, it’s tempting to connect through free wi-fi provided in various places such as hotels, coffee shops, conference rooms, and event spaces. Be wary of connecting to these wi-fi services. They provide the best opportunity for hackers to access your device and your precious data.
To ensure that you are not vulnerable to hackers when using public wi-fi, you should use a virtual private network service. You can quickly research this by typing “VPN services” into Google. Among the top picks are NordVPN, IPVanish, and TunnelBear.
Make sure that the service you want works with your devices. Sometimes using a VPN will slow down your internet speed, so that’s another factor to consider.
VPN services are crucial if you’re traveling in foreign countries, especially ones that are disreputable. The cost of VPN services is reasonable. Expect to pay about $60 per year to use a service that covers all of your devices.
Today, every lawyer should be able to connect to the internet via their smartphone. If your smartphone service provider has an option for sharing that internet connection with an external device (e.g., your laptop), you should enable that option. You may have to pay extra, but it will be worth it.
If you cannot access the internet securely through a VPN, using your smartphone as a personal hotspot will do the trick. You need not use a VPN when you’re accessing through your cellular service, but if you want to be extra secure, you can.
If you want to use wireless headphones with your devices you need to know how to connect them via Bluetooth. You may also want to use a wireless keyboard or similar accessories. If so, you must know how to connect those devices via Bluetooth.
This is pretty easy in most cases. The trickier issue is fixing connectivity problems that sometimes crop up. Usually, the solution is to untether the Bluetooth device and reconnect it. If that doesn’t solve the problem, do some internet research.
Being able to sign documents that people send you by email is an important skill in today’s mobile world. What would you do if you had only your smartphone and received an email attachment that required your signature?
That happens a lot. And so you should learn how to sign a document with nothing more than your smartphone. PDF Expert will store an image of your signature for just this situation. Adobe’s Acrobat Reader mobile app is easy to use and free, so try that unless you have a different method that’s more familiar.
Obviously, your smartphone will allow you to receive and send emails. Dealing with attachments, however, can sometimes become challenging.
You should be skilled at downloading attachments and working with them on your phone. And you should then be able to transmit a document that you’ve worked on with your phone to someone.
Mobile devices generally will require you to send an attachment to the app you want to use to work with it. For example, in the digital signature example above, you’d have to send the attachment to PDF Expert or Adobe Acrobat Reader. Then you’d sign the document using your finger or a stylus. Then you’d send the edited document back to your email program as an attachment.
Your email program should be connected to your contacts list so you can easily access the recipient’s email address. But sometimes you don’t have the person in your contacts.
What do you do then?
If you can find the email address somewhere else and copy it, then you can paste it into the email address field. Or, if you have to, you can just type the address in manually, being very careful to get every single letter correct, or else the email will wind up bouncing back without reaching its intended destination.
The online storage services discussed in this article all have apps that allow you to synchronize or share documents to your mobile devices. It’s unrealistic to carry around an entire synchronized set of your digital documents on your mobile phone or tablet. At best you can download a small batch.
But you should strive to have your key data synchronized among all of your devices. So, if you add contact information for someone to the database on your phone it should show up instantly on all your other devices.
And if you make a calendar appointment on your phone, the same thing should happen. This is especially important if you’re working with an assistant who has control of your digital calendar.
Synchronization is complex, and that’s why it’s hardly ever 100% reliable. But it’s usually at least 97% reliable. The problem is we all assume our devices are constantly 100% in sync.
When synchronization stops working, you’re not typically given a warning. Even if you do get a warning, it often goes unnoticed. So, you should be mindful of and vigilant about potential synchronization problems. The best practice is to periodically check whether a new contact record you added on one device is showing up on other devices and how long the sync takes.
The hardware and software available to an appellate road warrior is largely a matter of preference. Getting comfortable with the technology, becoming proficient at using it, and learning how to preserve data security are important first steps.
Upon reaching that threshold, however, the majority of tasks most appellate lawyers must accomplish to serve their clients need not be performed in a traditional office. The right equipment, software, and a secure, high-speed internet connection provide the tools necessary for the job. Because we’re able to interface with courts electronically and in-person client meetings are rare, our location just doesn’t matter.
So, take that long weekend, extended vacation, or sabbatical if your firm allows. See the world and spend time with your family. With the right setup and the proper mindset, work shouldn’t hold you back.
Thanks again to Ernie Svenson for his significant contribution to this series.
This is the fourth installment in my series on practicing appellate law from the road. The others are available here.
This post addresses methods for continuing your daily work without access to your office or laptop computer. Highlighted below are various apps that will help keep things moving.
As mentioned earlier in the series, an Office365 annual subscription gets you free access to apps from Microsoft that match up with the same programs on your computer, specifically Word, Excel, PowerPoint, and OneNote. While not as fully featured as their computer-based counterparts, they provide all of the functionality most lawyers need to work effectively. Word now has a robust Track Changes mode that allows you to see and make redline edits. You can create, review, and edit documents on your phone or tablet. Excel allows you to create and edit spreadsheets, use formulas, and filter and sort. You can create and edit presentations with PowerPoint. And OneNote (discussed below) is an effective notetaking app.
PDF Expert/PDF Pen
A number of mobile apps provide basic PDF functionality. Look for a mobile version of your desktop PDF program and go from there. At a minimum, you want the ability to review, highlight, edit and (hopefully) sign PDF documents on your phone or tablet. Both PDF Expert and PDFpen provide that functionality at an affordable cost.
PDF Expert’s developers have vastly improved the app over the past few years. It is very good for annotating PDFs by either typing into text boxes or using the Apple Pencil with a compatible iPad. This is an extremely useful feature for the appellate road warrior in or out of the office.
About the only feature missing from PDF Expert is the ability to make a document word-searchable from within the app. It works well with Dropbox and other cloud-storage services and will two-way sync, meaning that changes or annotations made on your mobile device will automatically appear on the computer version and vice-versa.
Several apps make it easy to take notes (handwritten or typed) on a tablet or smartphone that sync back (through the cloud) to your main computer. Evernote is the most popular and is a great program. Some people prefer OneNote because it integrates well with other Microsoft Office programs (and it’s free if you already have the Office365 subscription).
Notability is a slightly different app specifically designed for folks who like to take a lot of handwritten notes. It is regarded as one of the premier apps for this specific functionality. Penultimate is a stripped-down alternative to Notability that syncs with Evernote and makes your handwritten notes searchable.
Legal Research Apps
Westlaw and Lexis both have very solid mobile apps. As with the mobile version of Microsoft Word, they do not behave quite the same as the desktop software, but still are very good. The free research databases available through the State Bar, Fastcase and Casemaker, also have mobile versions.
Take the time to become familiar with the mobile app that connects to your online legal database of choice. The ability to quickly research legal authority cited by an opponent in court can be indispensable. That’s one reason to practice using the mobile app periodically.
Being able to scan a document while on the road is handy. You can do this with the camera on your smartphone or tablet, but there are apps that will make scanning easier and produce better results. Several apps let users take quick snapshots of a document or pages of documents, convert them into a PDF, and, in some instances, even convert them to a searchable PDF. Most of the good apps will also let you save the PDF into several of the cloud-based file-management services previously discussed.
Although Evernote is primarily known as a note-taking service, it has a great mobile app for scanning. If you’re an Evernote user, you should check out the mobile app.
ScanSnap Cloud complements the ScanSnap iX500 scanner discussed in the previous post. After creating an account, you can use the app to scan documents, business cards, receipts, or photos and save them in the cloud-storage services specified for each type. For example, with documents, you can have scans automatically upload to a default destination in Dropbox (e.g., /ScanSnap) and convert to searchable PDFs. With receipts, you can have the scans automatically upload to Expensify (addressed below). Having the scanner default to the same destination simplifies the processing of scanned documents for saving in the correct location.
Scanner Pro is a solid scanning app from the makers of PDF Expert. It works with several cloud storage services and will create searchable PDFs from scans.
Adobe Scan complements the Adobe Document Cloud subscription mentioned earlier in the series. It has an auto-capture feature that will search for and lock in on a document visible through your camera lens. The app allows you to crop, rotate, reorder pages, or otherwise edit the document before saving it to the cloud in searchable PDF form.
Other apps to consider are Abbyy FineScanner, Turboscan, and Scanbot. Make sure that the app will let you scan multiple image captures to a single PDF file. And see how easy it is to then email the PDF to someone.
This app effectively handles all aspects of expense reporting. Any receipt delivered by email (e.g., hotel, car rental, or flight receipts) can be forwarded to an email address for entry into the Expensify system. For other receipts, simply take a picture of the receipt with your phone and add it the list in the Expensify app. Receipts can be easily categorized and organized into expense reports that can then be forwarded by email as detailed PDFs. The Pro version (which requires an annual fee) lets you forward pictures of any receipt to Expensify, where it is OCRd and entered into Expensify for you, saving you the trouble of manually entering information for restaurant, cab, and other miscellaneous travel-related expenses.
This app easily organizes all your trip-related information. Like Expensify, you forward any travel-related email (e.g., flight plans, hotel reservations, or car rental confirmations) to an email address for saving to your profile. TripIt then groups various items together as trips based on the dates involved. You can easily track your flights, hotel reservations, and car rentals all in one easy-to-view location. The Pro version allows you to share this information with others, including your staff, colleagues, and family members.
In the fifth and final post of this series, we’ll cover the essential skills needed for effective mobile lawyering and some best practices, including recommendations for keeping your client data safe.
This is the third installment in my series on practicing appellate law from the road. To see the others, click here.
You’ve chosen your hardware (laptop, tablet, or smartphone) and the basic software you’ll need to be productive. Before going on the road, you must also consider how your information will be organized and accessed to enhance your productivity while traveling.
The appellate world has largely become digital. This coincides with the trend toward taking law practices paperless. Maintaining client files in digital form is quickly becoming the industry standard. With so many documents being created on and received through our computers, that standard should not be difficult for appellate practitioners to meet.
Maintaining files in digital form means converting analog documents and storing them in the same location as native digital documents. The key is to make digitization of all file materials part of your office workflow. If your research notes or other relevant file materials are accessible when needed, you won’t miss a beat when working from the road. If they aren’t, then things won’t go as smoothly.
Most firms have some type of scanning system to digitize analog documents. For a very reliable and inexpensive alternative, I recommend the Fujitsu ScanSnap iX500, a dedicated scanner that sits neatly on your desk. It works with Mac or PC systems and will scan 50 pages at a time, whether single or duplex. At about $430, this is the scanner to buy if you’re the one choosing your equipment.
Cloud-Based File Management
True mobility is built on ready and dependable access to the information necessary to represent your clients. Many firms have a centralized file server that permits remote access to client files. Because servers are expensive to purchase and maintain, cloud-based alternatives have taken hold that permit file storage, organization, and management cheaply and efficiently. Cloud-based file management is the backbone of an appellate road warrior’s practice.
The best-known examples of these services are Dropbox, Box, Google Drive, Microsoft OneDrive, and iCloud. All work on PCs or Macs and interact well with both iOS and Android devices. These services generally involve setting up a folder structure on your computer that is automatically backed up as any changes are made to the local files. Those changed or added files are also synced to any other computer set up to access the cloud-based system.
To illustrate, I build my firm’s file system entirely in Dropbox Business. Each firm computer has shared access to certain team level Dropbox folders containing administrative documents, matter files, and forms. Other folders are shared only between users needing access to them, such as the firm’s bookkeeper or accountant. I can access the latest version of any document on the system using my laptop, iPad, or iPhone, regardless of location.
Another benefit to cloud-based file management is disaster preparedness. Aside from syncing documents between computers, all files also reside in the cloud. In an emergency, I could access any document from any internet-connected machine using the Dropbox web interface.
A practical approach to maintaining case information digitally is to set up your folders to mirror how the same bits of information have been maintained in hard files. The difference is that the digital files allow instant access using electronic devices that aren’t tied to a set location.
As an example, my Dropbox files are set up using the following folder structure, as it appears on my iPad screen:
These are self-explanatory. The goal is to come up with a set of subfolders that you would expect to use in each of your cases so you can locate the information you need when you need it. Document-naming conventions that start with YYYY-MM-DD result in files within each folder being sorted chronologically.
We’ve covered the preparation phase. Next, we’ll discuss some apps that make it easier to tackle client work from the road.
This is the second post in my series on practicing appellate law from the road. The introductory post is available here.
Effective mobile lawyering requires some up-front preparation. The hardware you’ll take with you is a threshold consideration.
A laptop, tablet, and smartphone are the key tools for practicing remotely. The hardware needed to practice from the road depends to some degree on the depth of the work you’ll be doing.
If you intend to prepare a full-on brief, a laptop with all of your standard software will probably be necessary. Laptops are so powerful these days and external monitors are so common that there’s really no reason to have a desktop computer in the office anymore. Hauling your everyday computer around with you will increase your ease of use and comfort level. But some may not want to make that commitment.
Tablets are more convenient to carry around than laptops. They are suitable for reading emails and PDFs, internet research, and relatively light document drafting or revision. The iOS and Android versions of the most popular word processing programs continue to improve, however, so more substantive legal work may be accomplished on a tablet than ever before. Tablets are the sweet spot for appellate road warriors who want to do some work but don’t want to drag their laptops with them while traveling.
A smartphone is obviously the most convenient device to take with you and requires little advance preparation to make productive. From the road, you can easily monitor email, make and receive calls, surf the internet, and read certain documents. But unless your eyes are sharp and you are an excellent thumb typist, a smartphone is not the best device on which to do much substantive drafting or revision.
Other Key Tools
Several tools beyond a laptop, tablet, and smartphone will help you work successfully from the road. Consider picking up these items before you take off.
If you’re transporting your laptop and other devices, it’s best to have a good carrying case. If most of your traveling is local trips to courthouses and conference rooms, then a nice briefcase is probably best.
But if you’re traveling by plane, you’ll want something that is rugged and fits easily under a seat or in the overhead compartment. And it should have enough capacity to store all of the accessories you’ll need.
If you will work in noisy environments such as in coffee shops or on airplanes, you’ll appreciate having a nice pair of headphones. The best ones to get are the noise-canceling kind.
Noise-canceling headphones don’t eliminate all external sound, but rather minimize external sound. They are best at minimizing regular kinds of sound such as the hum of jet engines or the background conversational noise in a coffee shop.
Dramatically reducing external noise makes it easier to concentrate when you’re working in a public place.
For ultimate versatility, we recommend Apple AirPods. These wireless headphones connect to your devices via Bluetooth. Although they are not noise-canceling, they are great for watching video or listening to music, and they allow you to talk on your smartphone hands-free without the rest of the world hearing the entire conversation. The charging storage case is a neat feature.
External Battery Charger
Since your smartphone is now so crucial to your productivity while out of the office, you need to make sure it doesn’t run out of battery power. That means you’ll need an easy-to-carry external charger.
The bigger battery chargers will hold enough juice to fully charge a dead phone up to three times. But those are usually too big to carry easily. So we recommend something light and small, such as the Mophie Powerstation Plus Mini (now $44.99 on Amazon). Comparable models like the Anker PowerCore II Slim 10000 ($33.99 on Amazon) are also a good choice.
Typing on a tablet is only marginally better than thumb-typing on a smartphone. Fortunately, several good, compact external keyboards are available that more closely approximate the typing experience on your laptop, increasing accuracy and ease of use. Some tablet protective cases have keyboards built into them, reducing the number of accessories needed to work effectively from the road.
Other Common Accessories
Be sure to pack the chargers for your laptop, tablet, and smartphone, and bring USB charging cables. And if you use an Apple Pencil or other stylus with your tablet, don’t leave it behind.
If you’re traveling out of the country, you’ll face steep charges for phone calls and cellular internet access. One solution is to buy a special data plan from your cellular provider. A better solution is to buy a SIM card that you can swap out for your phone’s SIM card.
The data packages will be much cheaper usually. And it will be easier to buy more data if you need to. Finding the best option will require a bit of research. Try searching for “International SIM card” to find something that appeals to you.
If you need GPS service to find your way around, having a lower rate SIM card will be crucial. You won’t be able to receive phone calls made to regular cell-phone number if you replace your SIM card. But that may be a worthwhile tradeoff.
Another uncommon accessory is a small tracking device you can put in your laptop bag or in your luggage. Some tracking devices are small and thin enough to fit in a man’s wallet.
The best-known tracking device is the Tile Tracker, which you can find on Amazon for about $20 each. The batteries in these devices only last for a year, but you’ll get a discount when replacing a unit with an expired battery.
Basic Software Tools
You will also need some basic software tools. Many of you likely use them in your practice already.
Microsoft Office’s suite of applications is a necessity. Most firms already provide Microsoft Word to their users. You can also purchase an annual license through the Office365 program for roughly $99 per year. This permits you to install the entire Office Suite (Word, Excel, OneNote, and PowerPoint) on up to five computers (PCs or Macs) and allows you to download the iOS and Android versions of those programs.
You will also need a program that allows you to create, manipulate, and organize PDF documents. Adobe Acrobat Pro, which is available for PCs and Macs, is the standard. Although Acrobat Pro is expensive standing alone, Adobe now offers the software on a subscription basis as part of its Document Cloud service. The subscription includes other nice features, such as the ability to send and track documents and receive signatures securely.
Alternatives include PDF Expert (Mac) (my favorite), PDFpen for Mac, or iSkysoft PDF Editor 6 Professional (Mac and Windows). These are feature-rich and less expensive than Adobe Pro.
When choosing a PDF program, look for the following functionality: creating PDFs, adding and removing pages in PDF documents, signing documents, and making documents searchable through optical character recognition (OCR). This functionality should carry through to the mobile version as well.
That’s a quick look at potential hardware. The next post will discuss another preparation issue: how to set up and manage files so you can access them from the road.
Think about what Texas appellate practice was like a decade ago. Courts required paper filings, and filing fees were paid by check. Appellate records existed only in paper form. Briefs had to be completed in time for the right number of copies to be made and either hand-delivered or dropped in the mail to ensure timely filing and service. Making an after-hours post-office run to ensure the “mailbox rule” was satisfied was not unusual. Accomplishing work while traveling generally meant lugging around paper files and a laptop and relying on a slow and unreliable internet connection.
Fast forward to 2018. Our courts have gone digital in nearly all respects. A large, multi-volume appellate record is reduced to a searchable PDF file. eFileTexas.gov allows us to timely file and serve briefs until 11:59 p.m. on the due date. High-speed internet has become widespread, and the devices through which we access digital information have become increasingly sophisticated and powerful.
Except for the occasional oral argument or other court appearance, a modern-day appellate lawyer should be able to work productively from anywhere in the world. With help from one of my digital mentors, Ernie Svenson, my next few posts will overview some of the hardware, software, and best practices that allow appellate counsel to serve clients safely, securely, and efficiently from almost anywhere.
The Appellate Sections of the Austin Bar Association and the State Bar of Texas are once again co-sponsoring “An Evening with the Supreme Court of Texas.” This event—which has been held biennially since 2008—will take place on Thursday, March 1, 2018, from 6:00 to 8:00 p.m. at the InterContinental Stephen F. Austin Hotel here in Austin. One hour of CLE credit has been requested.
As in the past, the justices will participate in a panel discussion about practice before the Court and other relevant issues. A social hour will follow.
The event is free to all attendees, thanks to several sponsoring law firms— including Smith Haley Nobles. No RSVP is required.
Prior versions of this event were highly informative and well attended. I was privileged to serve as moderator in 2012, when I was both the Austin Bar Appellate Section Chair and a member of the State Bar Appellate Section Council. I would encourage all Texas lawyers to take advantage of this special opportunity to hear what the justices have to say and to visit with them on an informal basis.
In this inaugural post for 2018, I’d like to announce a significant change in my firm. As of January 1, 2018, Smith Law Group has become Smith Haley Nobles.
I started this firm in 2006 as a sole proprietorship. Solo life was great, if somewhat solitary. I enjoyed enough success the first couple of years that I had more work to do than time to do it. Growing the firm made sense, so I formed a professional corporation. And with that, in 2009, Smith Law Group was born.
We’ve experienced our share of change over the years. Lawyers and staff have come and gone, including a couple of partners who have gone on to hang their own shingles. I’m pleased to track their careers and see the success they are enjoying now.
But it’s not all about me.
If you don’t know my now-name partners, Laura Haley and Jeff Nobles are exceptional lawyers. Just ask their clients, opposing counsel, and the judges before whom they’ve appeared. They don’t work for me, they work with me. Each of us brings something different to the table. Together, we’re building something far greater than what any of us could create alone.
If it seems to you that there are many more appeals of attorneys’ fees these days, you’re right. Appeals involving attorneys’ fees have risen steeply over the last seven years. There is something happening in this area of the law, and we need to be keeping up with it, because it is directly relevant to our clients and our practices.
Between 2011 and 2017, there were at least 922 Texas appellate decisions involving challenges to awards or denials of attorneys’ fees—more than double the annual average between 2001 and 2010:
What’s more, the ratio of attorneys’ fee appeals, compared to damages appeals, rose from about 50% in 2001 to more than 80% after 2011:
Over this period, there were almost as many attorneys’ fees appeals as damages appeals in Texas.
Why so many new appeals? Part of the answer is the stickiness of attorneys’ fees. Stickiness is an economics term describing a financial variable that is resistant to change. “Sticky” prices for goods and services stay high even when you might expect they would be falling. For many reasons, attorneys’ fees are sticky, like the prices for many services. Most of these reasons are unrelated to judicial decisions. Attorneys’ fees generally arise from private transactions between lawyers and their clients, without judicial oversight. Nevertheless, it would be naïve to believe that judicial decisions have no impact.
The appellate response to sticky fees
In recent years, Texas courts have adopted and followed new standards for measuring the reasonableness of attorneys’ fees that have had the overall effect of reducing fee awards in litigation. In 1997, the Texas Supreme Court adopted the Arthur Andersen standards for gauging the reasonableness and necessity of fees. Since its 2006 Chapa decision, it has required fee segregation in most cases to reduce the possibility of lawyers receiving fees for services that are not eligible for fee-shifting. In 2012, with El Apple I, the Court followed the “lodestar” analysis of attorneys’ fee applications, which assures that fee awards are more closely linked to the amount of time actually devoted to the case at standard rates. Further, Texas courts of appeals have ruled that the Texas statute allowing the recovery of fees in contract cases does not apply to partnerships, LLC’s, or any entities that are neither individuals and corporations. As Professor Mark Steiner observes, “It’s not a coincidence that all these decisions are designed to limit the recovery of attorneys’ fees.”
Reasonableness as a policy issue
These trends suggest Texas courts are following a policy of weakening the stickiness of attorneys’ fees, at least in litigation. Following the supreme court’s lead, a record number of cases concerning attorneys’ fees have filled Texas appellate dockets in the last seven years, illustrated in the graph above. Unlike twenty or thirty years ago, the reasonableness of attorneys’ fees is no longer a pure question of fact; instead, the issue also involves questions of substantive law, precedent, and policy.
“There’s something happening here. What it is ain’t exactly clear.” There is a perception—an accurate perception—that the Texas Supreme Court is increasingly willing to overturn jury verdicts in tort cases. There is also a perception—an inaccurate perception—that the court is doing this by changing the no evidence standard of review. In fact, something quite different, and quite appropriate, is going on. The court is paying more attention to the distinction between questions of policy and questions of fact. It is assigning more questions of policy to the court rather than to the jury.
In the new millennium, these words are just as apt in any discussion of appellate review involving attorneys’ fees.
Mind your fees and q’s
Many Texas advocates have been slow to appreciate how rapidly the review of attorneys’ fees has evolved. In many cases, attorneys’ fee awards have been reversed because lawyers did not understand how to segregate attorneys’ fees or to prove up fees under the lodestar method. In many others, awards have been affirmed because the appellant had not preserved objections based on these grounds.
Before Arthur Andersen, Chapa, and El Apple I, litigants could recover from a failure to pay serious attention to proving attorneys’ fees. Fees were infrequently challenged at trial or reviewed on appeal. The statistics, however, illustrate that times have changed. Today, reasonableness is still the standard for awarding attorneys’ fees, but the standards for establishing and reviewing reasonableness are far more exacting. Don’t go to trial or file an appellate brief without understanding these new rules, unless you have help from someone who does.
Photo: The Rolling Stones, May 8, 1971, from a trade ad to promote their “Sticky Fingers” album. WikiMedia Commons.