INTRODUCTION
Knowledge Is Power: Understanding The Process Which “Occurs” Post Judgment
It is commonly thought that the job of an attorney is to secure a remedy against a negligent party and a purpose of a judgment is to enforce such remedy, the latter which is usually an award of damages. This is a half truth. In reality, the real “job of the lawyer is not simply to find the negligent party but the negligent solvent party.” Delving Into DeepPockets, Time, (June 13, 1983). Hence, in the guise of expanding the legal boundaries of “duty,” the majority of lawsuits (and contemplated judgments) target the most solvent defendant. Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) (Gonzalez, J) (Concurring Op. on Reh’g). (“[T]his case has a lot to do with a search for a “deeppocket” who can pay. If the purpose of awarding damages is to punish the wrongdoer and deter such conduct in the future, then the individuals responsible for these reprehensible actions are the ones who should suffer, not the people of Texas in the form of higher insurance premiums for home owners”). Meanwhile, insurance industries continue to close liability loopholes by adding exclusions to policy coverage provisions. Ledyard v. Auto-Owners Mut. Ins. Co., 137 Ohio App.3d 501, 739 N.E.2d 1 (Ohio App. 2000) (“A strict application of the exclusion could lead to the absurd result of nocoverage at all under the policy for any claims whatsoever”).
The existence of insurance and interpretation of coverage policy provisions can generate disputes arising from the purchase of the property, construction, environmental concerns, title, landlord-tenant relationships, partner relationships, personal injury and bankruptcy. It is probably no exaggeration to say that anyone in the business who has not been involved in litigation knows someone who has. Yet experience suggests that the appellate process is far less well understood than the trial process, most likely because the vast majority of lawsuits settle before trial and many cases that do go to trial do not proceed past judgment.
Understanding the appellate process is crucial. An intelligent trial strategy must assume the possibility of an appeal; and planning for that possibility requires an understanding of the fundamental differences between trials and appeals. Post-trial settlement discussions can’t be meaningful unless they account for the parties’ chances on appeal and the fact that a published appellate decision can establish new law that reaches beyond the interests of the immediate parties to the case.
What Is The Texas Appellate System?
On the civil side, there are two levels to the Texas state and the federal appellate system, an intermediate reviewing court called the court of appeals and the Supreme Court. A party is entitled, as a matter of right, to have a judgment by the court of appeals. Review by the Texas Supreme Court, in contrast, is discretionary and grants of petitions for review runs about 10%. The Supreme Court’s review is limited to six areas which have a common theme — either State revenues are involved or there is an extremely important issue of law requiring resolution.[i]
In the federal system, review by the United States Supreme Court is limited and discretionary. The practical result of this limitation is that the intermediate federal court and is the court of last resort for the overwhelming majority of cases, and most of the law is developed in such courts. It also means that different intermediate courts can reach conflicting results that the Supreme Court may choose to let stand. These conflicts can be substantial. Texas has fourteen appellate districts, and each district is, for all practical purposes, an autonomous court that is not required to follow other Courts of Appeals’ decisions, although they usually do.[ii] The federal system’s thirteen circuits are likewise independent from one another.
Most people think the appellate process as something that happens only after a trial. But appellate courts have the power to intervene earlier — to grant “interlocutory” review. While, an appellate court’s jurisdiction is established by constitutional and statutory enactments. See, e.g., Tex. Const. Art. V, § 6; Tex. Gov’t Code Ann. § 22.220 (Vernon 2008). Section 51.014 of the Civil Practice and Remedies Code authorizes appeals of interlocutory orders. Tex. Civ. Prac. & Rem.Code Ann. § 51.014. However, statutorily authorized interlocutoryappeals are a narrow exception to the general rule that only final judgments and orders are appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). As a result, appellate courts strictly construe section 51.014. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 244 S.W.3d 455, 458 (Tex.App.?Dallas 2007, pet. granted); see also City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686-87 (Tex.App.?Dallas 2003, pet. denied). Although parties can obtain review of certain pre-trial orders as a matter of right, interlocutory review is usually discretionary or very difficult to obtain. It typically requires a showing of unusual prejudice or some public importance usually provided by statute, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 51.014, of the issue involved.
Regardless of the path one takes to the appellate court, the most important thing to recognize is that appellate review is a fundamentally different process from a trial. Not just the rules, but the game itself has changed.
WHAT IS THE ROLE OF THE APPELLATE COURT?
Of all the rules that distinguish appellate courts from trial courts, probably none is more “cast in stone” than the presumption in favor of the judgment issued by the trial court. Texas appellate courts frequently reiterate that “[a] judgment or order of the lower court is presumed to be correct on appeal, and all intendment and presumptions are indulged in favor of its correctness.” Beeks v. Odom, 7 S.W.2d 702 (Tex. 1888). Among the important corollaries of this rule is that it casts upon an appellant the burden of showing not only that there was an error in the trial, but also that the error was harmful — that it is “reasonably probable” the case would have come out differently without the error. Tex. R. App. P. 44.1 This can be a very heavy burden indeed.
The presumptions favoring the judgment are buttressed by limitations on the scope of review. Appellate courts, as a general rule, review errors of law — that is, errors in admitting or refusing evidence, in instructing to the jury, and so on. Review of the facts is, generally speaking, almost always off limits, although Texas intermediate appellate courts constitutionally possess such power. Further, even the commission of a prejudicial error will not generally secure a reversal unless trial counsel objected to it. This is one of the reasons lawyers spend so much time making objections in the trial court, even when they know the judge is going to rule against them.
Yet another limitation on appellate review is the state of the evidence. In Texas there are two standards by which evidence is reviewed: legal sufficiency and factual sufficiency, treated, respectively as “no evidence” and “insufficient evidence” challenges. Meadows v. Green, 524 S.W.2d 509, 510 (Tex.1975). In reviewing a “no evidence” point, either in the context of evidence in support of a jury finding or proper submission of a jury question, Texas appellants must consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). If there is more than a “scintilla” of probative evidence to support the finding, a no evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). In reviewing an “insufficient evidence” challenge, Texas appeals courts must consider and weigh all the evidence and can set aside the judgment only when it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). To put it more simply, in Texas, the standard rule is that the power of the appellate court begins and ends with a determination as to whether there is any substantial preponderating evidence, contradicted or uncontradicted, to support the trial court’s or jury’s findings.
One cannot overstate the importance of this rule. It means that no matter how strong a party’s evidence may have been at trial, if the other side won and there was is more than a preponderance of evidence supporting its case, a Texas appellate court may not reverse for lack of evidence. Suppose, for example, a contractor plaintiff testifies that at a weekly site meeting the defendant owner gave oral approval for extra work, but the owner and everyone else at that meeting denies the owner did so. If the jury finds for the contractor, that is the end of the matter as far as the appellate review isconcerned. No matter how many people contradicted him and no matter how credible they may have seemed at trial, the appellate court will not revisit the issue. In Texas, this principle takes on added significance in the context of objections. For example, suppose the contractor was not at the meeting but testifies that his assistant was there and that the assistant later told the contractor that the owner had approved the extra. This is hearsay and properly objectionable. But if trial counsel fails to object, any error is waived, the jury can properly consider the evidence and the appellate court cannot second-guess the result, even the objectionable hearsay is the only evidence supporting the verdict. For obvious reasons, the substantial evidence rule is probably one of the most frustrating for losing parties who feel in their bones that the jury believed the wrong people. It is also probably the rule most frequently ignored or misunderstood by Texas lawyers with little appellate experience. On the other hand, the hearsay rule, for instance, does not entirely waive appellate error. But, when a party does not object to hearsay, appellate review is limited to plain error. See United States v. Polasek, 162 F.3d 878, 883 (5th Cir.1998). The United States Supreme Court has definedplainerror as error that is “clear,” or “equivalently ‘obvious,’”United States v. Olano, 507 U.S. 725, 734 (1993). Another definition is that the error could have been “ ‘clear under current law’ at the time of trial,” or in a case “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that the error be ‘plain’ at the time of appellate consideration.” Hence, while state and federal appellate courts articulate this rule differently and may vary in how its applied, it is deeply ingrained.
Another principle that affects the implementation of all the others is this: the record is reality. The only thing the appellate court can look at is the record created at trial — typewritten transcript of the witnesses’ testimony, the exhibits offered, and any papers filed with the court. With exceptions so rare they are not worth mentioning, even the most compelling evidence against a verdict cannot be brought to the reviewing court’s attention if it was not presented at trial. Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979) (appellate courts cannot look outside record to discover relevant facts omitted by parties; rather, we are bound to determine cases on records as filed). It is surprisingly common for clients to ask their appellate counsel to rely on evidence outside the record, but the almost invariable answer is that there is no way to do it. This includes not only events completely external to the trial, but also, in most cases, things that happened during trial that were not captured by the record, such as an off-the-record colloquy with the judge, a witness’s answer that the court reporter failed to catch and gestures.Rogers v. State, 756 S.W.2d 332, 336-37 (Tex.App.?Houston [14th Dist.] 1988, pet. ref’d). (“In addition to noting that appellant failed to request that the record reflect the substance of the gestures or demonstrations, we also note that he failed to object to them”).
STRATEGIC ISSUES
The procedural distinctions between appellate and trial courts mean that the strategic environments are also very different. What worked in the trial court may fall flat in the Court of Appeals. Indeed, great trial lawyers sometimes make terrible appellate advocates. The most obvious and dramatic difference is the extent to which an appeal depends on written work. Even though complicated lawsuits frequently involve extensive briefing, most cases end up turning on how the players communicate on a personal level — lawyers and judges, lawyers and jurors, witnesses and jurors, and so on. The development and trial of a lawsuit generates an ongoing and complex relationship among these parties. An unsuccessful motion may be reattempted with new evidence; difficult legal issues may undergo multiple rounds of briefing and argument; jurors may have weeks or even months to watch the lawyers and witnesses in action and to assess their credibility; and the lawyers may continually reshape the case as evidence unfolds.
It often makes sense to bring in an appellate lawyer before a final judgment is entered. Many an appellate lawyer has reviewed a record and seen an issue not properly preserved, an argument not raised, or a document that never became part of the record. Having an appellate lawyer on board during the trial phase with an eye trained on these issues can often result in an increased chance of success when the case reaches the appellate court. Associating appellate counsel makes sense because it helps to maximize the chances of a good result for your client. Associating early increases the likelihood potential appellate issues will not be missed or waived for failing to preserve them.
Just as every lawsuit is unique, there is no definitive answer to the question of when an appellate lawyer should be brought in to a case. Factors to be considered include the complexity of the issues, the amount at stake, and the likelihood of appeal. Lawyers get a feel for cases that will likely end up on appeal, and bringing in an appellate specialist early can often help pave the road ahead. Tasks appellate lawyers are well suited for include formulating issues, litigation support, and crafting pleadings, proposed orders, jury charges, charge conferences, and the like. The focus here is to either preserve or avoid potential appealable issues in the event your client must take or defend the trial courts rulings on appeal.
However, as a general rule, the appellate lawyer appears post judgment. The “evidence” before the appellate lawyer is the trial record, a sealed box — what is in it cannot be removed, and what is missing cannot be added. And most important, the overwhelming majority of the appellate lawyer’s work goes into writing briefs — typically two for the appellant (an opening and reply brief) and only one for the opponent. Everything the appellate lawyer has to say must find its way into those briefs, which the appellate judges will review in the secrecy of their chambers before an oral argument that may last only a few minutes and may well have no impact on the outcome of the case. (It is common in many Texas appellate courts for the justices to have already reached a tentative “pre-submission” decision and sometimes even to have written an opinion before oral argument.)
Further, a reviewing appellate court never sees or hears the witnesses. It reviews testimony solely from a “cold record of words [where] the jury has the advantage of not only hearing the testimony, but also seeing the witnesses and all the surrounding circumstances that play a part in the processes of determining credibility.” Gunn Buick, Inc. v. Rosano, 907 S.W.2d 628, 631 (Tex.App.—San Antonio 1995, no writ). This is, indeed, one of the reasons appellate courts eschew any effort to second-guess the jury.
An additional, and unfortunately very important, fact is that in main parts of the country the appellate courts are seriously overburdened by escalating caseloads without a corresponding increase in appellate judges. In Texas, it was recently reported that the pace of new appeal filings has increased by nearly a third over the last decade. A new mechanism, called “docket equalization” has allowed the Texas Supreme Court to alleviate the most overburdened appellate courts by transferring cases to another appellate court. Tex. Gov’t Code Ann. § 73.001 (Vernon 2008). One unavoidable result is even that the amount of attention a judge and his or her staff in the newly docket laden transferee court can or will devote to each case is shrinking. For an appellant, this makes an already difficult job even harder, not to mention is that the transferee court must apply the law of the transferring forum, even if its own precedent is more beneficial to one of the litigants. Tex. R. App. P. 41.3. In an arena where the rules favor the winner below, a petitioning party’s counsel must find a way to capture the court’s interest enough to get it to devote more to the appeal than a minimum share of its already inadequate time; to persuade the court justice requires a reversal; and to accomplish these results before getting the limited opportunity of a 20 or 30 minute oral argument to engage the court in dialogue. Small wonder appellate courts affirm the vast majority of judgments.
By Tina Snelling
(To be continued in Part II)
ENDNOTES
[i]. (1) a case in which the justices of a court of appeals disagree on a question of law material to the decision;
(2) a case in which one of the courts of appeals holds differently from a prior decision of another court of appeals or of the supreme court on a question of law material to a decision of the case;
(3) a case involving the construction or validity of a statute necessary to a determination of the case;
(4) case involving state revenue;
(5) a case in which the railroad commission is a party; and
(6) any other case in which it appears that an error of law has been committed by the court of appeals, and that error is of such importance to the jurisprudence of the state that, in the opinion of the supreme court, it requires correction, but excluding those cases in which the jurisdiction of the our of appeals is made final by statute.
Tex. Gov’t Code Ann. § 22.001.
[ii]. The Court of Appeals are: The First Court of Appeals in Houston; the Second Court of Appeals in Fort Worth; the Third Court of Appeals in Austin; the Fourth Court of Appeals in San Antonio; the Fifth Court of Appeals in Dallas; the Sixth Court of Appeals in Texarkana; the Seventh Court of Appeals in Amarillo; the Eighth Court of Appeals in El Paso; the Ninth Court of Appeals in Beaumont; the Tenth Court of Appeals in Waco; the Eleventh Court of Appeals in Eastland; the Twelfth court of Appeals in Tyler; the Thirteenth Court of Appeals in corpus Christi; the Fourteenth Court of Appeals in Houston.
Copyright © 2012 Tina Snelling
