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Texas Court of Criminal Appeals Update John R The Appellate Advocate State Bar of Texas Appellate Section Report Articles The Core of Trial Strategy: Practical Thoughts About Avoiding “Gotcha’s” - Create Checklists Douglas S. Lang Texas’s Transitioning Judiciary: A Few Appellate & Ethical Considerations Michael J. Ritter Special Feature An Interview of Justice H. Bryan Poff Tim Newsom Volume 31, Number 1 Winter 2019 The Appellate Advocate State Bar of Texas Appellate Section Report Vol. 31, No. 1 · Winter 2019 Editors’ Corner Jody Sanders & Julia Peebles ............................................................1 The Core of Trial Strategy: Practical Thoughts About Avoiding “Gotcha’s” - Create Checklists Douglas S. Lang...............................................................................4 Texas’s Transitioning Judiciary: A Few Appellate & Ethical Considerations Michael J. Ritter ............................................................................25 An Interview of Justice H. Bryan Poff Tim Newsom ..................................................................................76 United States Supreme Court Update Matthew Frederick, Andrew Guthrie, Taylor Whitlow Houang, & Ryan Paulsen .......................................83 Fifth Circuit Update Kelli B. Bills, Natasha Breaux, Ryan Gardner, & Wes Dutton ........ 138 Texas Supreme Court Update Wes Dutton, Jason Jordan, Chris Knight, & Patrice Pujol ............. 165 Texas Courts of Appeals Update Andrew B. Bender ........................................................................222 Texas Court of Criminal Appeals Update John R. Messinger ........................................................................227 The Government Corner Sandra Hachem & Cynthia Morales ..............................................238 THE APPELLATE ADVOCATE II The State Bar of Texas Appellate Section 2019-20 Officers 2019-20 Council Chair Terms Expiring 2020: Kent Rutter Perry Cockerell Haynes Boone Jackie Stroh [email protected] Audrey Vicknair Chair-Elect Terms Expiring 2021: Jerry Bullard Hon. Gina Benavides Adams, Lynch & Loftin Rich Phillips [email protected] Tom Leatherbury Vice-Chair Terms Expiring 2022: Dylan Drummond Jason Boatright Gray Reed Rachel Ekery [email protected] Raffi Melkonian Treasurer State Bar Board Advisor Lisa Hobbs Bob McKnight Kuhn Hobbs Supreme Court Liaison [email protected] Hon. Brett Busby Secretary Editors Kirsten Castaneda Jody S. Sanders Alexander Dubose Jefferson [email protected] [email protected] Jason Boatright Immediate Past Chair [email protected] Justice Brett Busby Dana Livingston [email protected] Second Past Chair Kristen Vander-Plas Mike Truesdale [email protected] Associate Editors Steve Barrick Brent Rubin Hayley Ellison Copyright © 2019 Appellate Section, State Bar of Texas. All Rights Reserved. Email: [email protected] Website: www.tex-app.org Twitter: @AppAdvoc THE APPELLATE ADVOCATE III Editors’ Corner Dear Readers, We have new co-managing editors in this issue, Jason Boatright, Kristen Vander-Plas, Dana Livingston, and Jody Sanders. Please let us know your feedback on the issue and keep us in mind for article submissions. We welcome any piece that presents an issue of interest to appellate practitioners. Jason Boatright [email protected] Dana Livingston [email protected] Kristen Vander-Plas [email protected] Jody Sanders [email protected] THE APPELLATE ADVOCATE 1 Disclaimer Contributions to the Appellate Advocate are welcome, but we reserve the right to select material to be published. We do not discriminate based upon the viewpoint expressed in any given article, but instead require only that articles be of interest to the Texas appellate bar and professionally prepared. To that end, all lead article authors who submit an article that materially addresses a controversy made the subject of a pending matter in which the author represents a party or amici must include a footnote at the outset of the article disclosing their involvement. Publication of any article is not to be deemed an endorsement of the views expressed therein, nor shall publication of any advertisement be considered an endorsement of the product or service advertised. THE APPELLATE ADVOCATE 2 THE APPELLATE ADVOCATE 3 The Core of Trial Strategy: Practical Thoughts About Avoiding “Gotcha’s” - Create Checklists1 Douglas S. Lang, Esq, Dorsey & Whitney, Dallas 2 “If you didn’t write it down, then it never happened.” — Tom Clancy.3 1. Introduction-Planning for Appeal Must Start at the Beginning of Any Case.4 Write “it” down. Great ideas, a plan, a strategy, they can all be lost in a flash when relying solely on memory. However, writing “it” down preserves those great ideas or, to paraphrase the words of Tom Clancy, “it” will never happen. Formulation of a written strategy is critical to any endeavor, but for lawyers preparing a lawsuit for trial and appeal, it is imperative. The written strategy can simply be a “checklist” of tasks that must be or should be accomplished at certain points in time. 5 For complicated litigation, a plan must be for 1 Texas and federal rules, statutes, and case law are cited herein. The authorities in other jurisdictions may direct some different rules and results from the cited authorities. However, the general propositions suggested for planning and error preservation should be applicable and are worthy of consideration in any jurisdiction. 2 Dorsey & Whitney, Dallas; Justice, (Former), Fifth District Court of Appeals of Texas. B.S.B.A., Drake University; J.D., University of Missouri. Prior to joining the bench, Justice Lang was a partner in the Dallas office of Gardere Wynne Sewell L.L.P. Justice Lang clerked for the Hon. Fred L. Henley of the Supreme Court of Missouri from May 1972 to May 1973. 3 TOM CLANCY, DEBT OF HONOR 600 (1994). 4 As the title of this paper indicates, the intention of the author is to offer “practical thoughts” for planning litigation. So, comprehensive legal authorities are, intentionally, not offered as to each of the proffered topics listed in the Strategy Points-A Checklist. 5 The effective use of checklist has been demonstrated to assure all required steps are executed in any complicated process including THE APPELLATE ADVOCATE 4 the long run; that is, a plan which plots points for performance of tasks on a time line from the beginning of a lawsuit through a potential appeal. That time line must set out when certain pleadings, objections, motions, or other submissions must be filed in the trial court. The strategic plan must also include a list of “Gotcha’s” that must be reviewed and checked off so no necessary steps are missed that are required by procedural rules or statutes.6 In order to compose that complete strategy or checklist, a careful trial lawyer should enlist the services of a skilled appellate lawyer. The suggestion that a skilled appellate lawyer be enlisted to assist in writing out the strategy is not a mere unabashed pitch for full employment of appellate lawyers. It is simply a reality. Teamwork between trial and appellate lawyers is necessary due to the complexity of the rules regarding, among other things, error preservation, the form and substance of dispositive motions, jury charges, and crafting appellate arguments and briefs. In summary, the critical importance of preparation of a comprehensive, written strategic plan is just this: if error is not preserved—you lose! 2. How can Error Preservation Be Planned? Most points in a case where error must be preserved can be anticipated by: a) understanding what the adversary will likely do to prosecute its claim or defend against a claim, and b) plotting out what a client must do to present its case or defend against a claim. Experienced trial lawyers know why error preservation is critical. Yet, it is worth noting that appellate courts rarely review an issue raised in a brief on appeal unless that issue claiming error is preserved in the trial court by a proper objection or motion. In most cases, the record must medicine, construction, aviation, and other specialized disciplines. Well thought out and prepared “checklists” assure thorough preparation and execution. See ATUL GAWANDE, THE CHECKLIST MANIFESTO: HOW TO GET THINGS RIGHT 8-10 (2010). 6 e Se Attachment 1. It sets out a long list of Gotcha’s found in the Texas statutes and Rules of Civil Procedure. THE APPELLATE ADVOCATE 5 show that the issue was brought to the trial court’s attention and the trial court had the opportunity to correct the erroneous ruling or order, there and then.7 3. Strategy Points—A Checklist. The points set out below, and other that might be applicable to a particular case, should be fleshed out in a detailed, written, strategic plan along with an analysis of rule and statutory “trip-wires,” or “Gotcha’s.” A suggested “Gotcha” Checklist attached to this paper can provided part of a baseline for a trial and appellate plan.8 a. Selection of Court System and Venue. There are many specific considerations to address when one selects where a lawsuit will be filed. The selection of the court system and venue is an opportunity to set the course of the case. Of course, first, is the question of whether the parties are subject to the jurisdiction of the court. This issue is addressed below. Second, the law of the possible available forums must be reviewed to determine if the law applicable to the claims is more favorable in one jurisdiction than another. An example is the amount of punitive damages that
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