PRACTICE POINTERS
Tips from the State and Federal Courts BY MEGAN JOHNSON, STAFF ATTORNEY FOR 353RD TRAVIS COUNTY DISTRICT COURT; JENNY BRANNEN, STAFF ATTORNEY FOR THIRD COURT OF APPEALS; AND KATIE CARMONA, LAW CLERK FOR U.S. DISTRICT JUDGE LEE YEAKEL
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ttorneys are taught that practicing before the court requires candor, civility, and preparedness. Candor and civility may be universally understood, but how does an attorney prepare to practice before the court? The following list of practice tips from career clerks in the state district court (TC), state appellate court (CA), and federal district court (FC) in Texas provide some insight into the steps attorneys can take to ensure that they are prepared and effective in court, even during a pandemic. PROPER COMMUNICATION WITH THE COURT TC: Court staff welcomes non-substantive, non-ex parte, communications by phone or e-mail.
CA: Call the Clerk’s office for procedural questions or to give advance warning of emergency filings. Please call back if you decide not to file your emergency. Consider informing the court and moving to abate the appeal if you are mediating your case to avoid wasting the court’s resources on preparation of an unnecessary opinion. If mediation is unsuccessful, you can move to reinstate the case. FC: Every federal judge is different, although most allow their law clerks to answer an attorney’s question, so long as it is procedural in nature. If you require immediate action by the court, please call chambers. Also call chambers if you resolve your case, especially if there are any pending motions before the court or if your case is nearing trial. EFFECTIVE WRITTEN SUBMISSIONS
TC: Identify the specific issue, relief requested, and the most rel24
evant facts or procedural posture at the beginning of the motion in an executive summary. This sets the foundation for the remainder of the pleading. Keep your writing specific, to-the-point, and concise. Use headings to map the arguments. Summary judgments are most effective when made only on a few strong grounds (rather than multiple less-certain grounds). Jury charges should comply with the Texas Pattern Jury Charge, unless exigent and persuasive circumstances exist. CA: Pick your best arguments; keep it to case-dispositive issues. Present and address threshold issues first (e.g., jurisdiction, applicability of statute). State relief requested clearly and concisely, including any alternative relief requested. Include live pleadings in the appendix or identify each by name in the brief or motion, especially when the record is large. Bookmark briefs and motions carefully. Make it easy to click on key sections and any important documents when reading electronically. Explain terms of art—not everyone who works on your appeal will be as familiar with the industry or area of law involved in your case as you are. FC: Be mindful of the Local Rules regarding page length and formatting requirements. Although the court may grant an unopposed motion to exceed the page limit, additional pages rarely translate into a more effective argument. If you file a motion or response with a large appendix, please call chambers to ask if the judge would like a bound and tabbed courtesy copy. HEARINGS AND OTHER ORAL ARGUMENTS
TC: Judges try to read your motion(s) before the hearing, but because cases are assigned within
AUSTINLAWYER | JULY/AUGUST 2020
Be aware—the courtrooms have microphones and cameras that allow staff to hear what is going on in court from chambers. PowerPoints and visual aids are effective only if used to aid argument rather than read out loud in court, which is a distraction. minutes before the setting, be prepared to orient the court to the type of motion(s) set, the specific issue(s) presented, the specific relief requested, and a brief outline of the relevant facts and procedural posture. Providing a written one-page executive summary to hand to the judge can be quite helpful. Be prepared with a proposed order, allowing the judge to understand exactly what relief you are asking from the court. Be aware—the courtrooms have microphones and cameras that allow staff to hear what is going on in court from chambers. PowerPoints and visual aids are effective only if used to aid argument rather than
read out loud in court, which is a distraction. CA: Know your weakest arguments and be prepared to address them. If the outcome of your appeal could have wider application, be prepared to address that broader effect. FC: Assume the judge has read your written submissions and understands the case. Do not begin by reciting the facts of your case unless the court asks for more background information about the case. Be ready to answer the judge’s questions. If you do not know the answer, ask the court if you may supplement your argument by written
