Appeals – What You Can Expect
If you would like to consult with us about an appeal, we ask that you complete the Appellate Consultation form below. This form asks you for basic information concerning your appeal that will allow us to investigate the facts of the case a bit before we talk to you.
Appeals are unfamiliar territory for a lot of people. For that reason alone, I try to begin every case with an initial client meeting to explain the process and discuss various options. Folks very frequently must be educated about what may or may not be reasonable expectations given the posture of the case and the state of the law.
CONTESTING THE VERDICT
Once a trial verdict is rendered, there are strict deadlines that a party faces in contesting a subsequent judgment. So we prefer to meet with the client as soon as possible after a verdict is rendered so that we can assess what evidence and motions might be needed before a notice of appeal is filed.
While an appeal is a matter of right, that doesn't necessarily mean that an appeal should be prosecuted. In other words, you might to think twice before agreeing to finance a Hail Mary. What I usually do is require an initial retainer to conduct a pre-brief investigation of possible issues for appeal. Once that is completed, I sit down with my clients and discuss costs and possible outcomes. If, after this meeting, my clients want to continue, I begin the hard work of additional research and briefing.
BRIEFS ON THE MERITS
Appeals deal with closed records—hearings and trials that have been decided and completed. Decisions are usually decided on written briefs. Writing a brief is like writing a dissertation under a chess clock. They set out citations to the record—what testimony given, what evidence was introduced—and argue where legal error may have entered the proceedings and turned the outcome. Sounds easy, at least many callers so say, but it isn't. Below are a couple of examples of appellate briefs I've done just to show you the kind of work that must be invested in an appeal.
Oral arguments are the stuff of legend, but they are rarely granted these days. Appellate judges, in fact, frequently say that oral argument never sway their opinions at all. My trial experience comes in handy if oral argument is granted.
Notable Appellate Results
Below is a partial list of significant cases, cases that created new law, that we have either argued or briefed that have been published.
Thompson v. Sheriff Ira A. Mercer
Keith Thompson was killed when Palo Pinto County Sheriff Ira Mercer ended a chase by firing an assault rifle into the cab of the truck that Thompson had stolen. Mercer calmly staked out a site where he could fire into Thompson's vehicle as Thompson drove up a long hill on a lonely farm-to-market road. The Fifth Circuit held that Mercer's actions were objectively reasonable, but even if they were not, his decision to shoot-to-kill Thompson was not so unreasonable as to deprive him of qualified immunity. 762 F.3d 433 (5th Cir. 2014).
Alexander v. Kent
Ed Kent sued Keith Alexander individually for allegedly defrauding him over the performance of a construction contract. The trial court awarded Kent $20,061.32 in actual damages, $3,000 in special bankruptcy damages, and $22,249.97 in attorneys' fees. We were retained on appeal, and were able to persuade the court of appeals to vacate the special bankruptcy damages and attorney's fees award, cutting the overall judgment by more than half. 2015 Tex. App. LEXIS 11521 (Tex. App.—Fort Worth 2015, no pet.).
United States v. Austin
The issue in this appeal was whether application of the remedial opinion in United States v. Booker to a sentencing hearing where the underlying offense was committed pre-Booker violated ex post facto and due process principles. After rescheduling oral argument two times and finally canceling it, the Fifth Circuit decided that Booker's remedial opinion did not offend ex post facto and due process concerns. 432 F.3d 598 (5th Cir. 2005).
United States v. Inman
In this white-collar case, the trial court ordered the defendant to pay $135,283.11 in restitution to the victims. This figure, however, reflected the victims' losses that occurred over two years before the temporal scope of the indictment. The Fifth Circuit held that restitution was limited to the specific temporal scope of the indictment. 411 F.3d 591 (5th Cir. 2005).
Pena v. Smith
In this breach of contract case, our client contested the the trial court's rendering of judgment based upon a disputed settlement agreement. We were able to persuade the court of appeals that the party seeking enforcement of a settlement agreement, even one negotiated and executed in the context of mediation, must do so through trial or summary judgment. The law doesn't recognize the existence of any special summary proceeding for the enforcement of a written settlement agreement. 321 S.W.3d 755 (Tex. App.—Fort Worth 2010, no pet.).