Appeals—Odds and Ends

The following addresses common questions I receive from trial attorneys and potential clients, plus one pet peeve.

Timeline of an appeal (roughly 2 years)

In the trial court, upon filing a timely notice of appeal, there will also need to be filed a request for clerk’s record and a request for reporter’s record. In the appellate court, the trial-court-file-stamped copy of the notice of appeal needs to be filed to allow the filing fee to be paid and a docketing statement must be filed.

Assuming the appeal is not accelerated (read the rules), records are due 30 days after your notice of appeal was due, and that deadline is not impacted by the actual date the notice of appeal was filed. If the transcript was already prepared, the reporter’s record will likely be filed quickly after it has been requested and paid for. Clerk’s records are generally prepared rather quickly after you pay for them. Either the clerk or the reporter can request (and typically get) extensions if more time is needed. The appellate court can decide an appeal without a reporter’s record (though that doesn’t usually go well for the appellant), but the appeal will get dismissed if no clerk’s record is filed.

Again, assuming the appeal is not accelerated, the appellant’s brief will be due 30 days after both records are filed, whether they’re filed early, on time, or late. The appellee’s brief is due 30 days after that, and the appellant’s reply is due 20 days after that. Extensions are common.

By this time, usually 5–12 months will have passed, depending on how many extensions were taken. The next steps are generally outside of the parties’ control. When the appellate court is able to calendar the appeal, it is assigned a submission date. The parties will receive a letter from the court advising whether the case will be set for oral argument or submission on the briefs and on what date that will occur. It is highly probable that no appellate judge will have reviewed any of the briefs until shortly before the submission date. After submission, one of the three judges will be assigned the task of drafting an opinion. Once the opinion is completed and approved, it will be distributed to the parties. This post-briefing process can take anywhere between 2 and 18 months. On average, from my experience, it takes about a year.

After the opinion is issued, either party may seek rehearing within 15 days or petition the Texas Supreme Court within 45 days. If rehearing is sought first, the 45-day deadline will reset after the conclusion of the rehearing process. If you “won” the appeal, there is no need to respond to any further briefing unless/until a court orders/invites you to respond. After all deadlines have passed or after all appellate remedies have been exhausted, the appellate court will issue a mandate to the trial court informing the trial court of the outcome of the appeal and instructing the trial court to take action if necessary. This post-opinion process generally lasts between 2–12 months.

In all, the appellate process can take between nine months and three years. The average usually falls between 12–24 months, but I typically advise my clients to be ready for at least 18 months.

Burden of Proof vs. Standard of Review

While the concepts are similar, they apply differently. At trial, each party bears a burden of proof, such as the preponderance of the evidence or clear-and-convincing. When the appellate court reviews a trial court’s decision, it applies a standard of review, such as the abuse of discretion standard or a de-novo review.

When reminding yourself of the appropriate burden of proof, look to the statute or, when available, the pattern jury charges. How much evidence is needed to convince a trier of fact?

When assessing the appropriate standard of review, look for appellate opinions addressing similar issues. Most often, but not always, the opinion will explicitly state the standard of review before beginning the analysis. More often than not, the standard of review is abuse of discretion, but not always. And, sometimes “abuse of discretion” is not quite specific enough to describe how the appellate court will review the issue presented.

Knowing both of these concepts for a particular issue can help you prepare for trial and know when it might be appropriate to guide your client towards settlement discussions.

Findings of Fact and Conclusions of Law

Findings of fact are similar to jury verdicts. They are only appropriate for contested issues that are necessary for reaching the ultimate decision. A party is not entitled to know the inner working of the court’s mind. Statutes typically define what findings a party is entitled to.

Conclusions of law are interesting, but they’re not binding on the appellate court. Conclusions of law are reviewed de novo. If there is any legal theory, whether or not it was articulated in a written conclusion of law, to support the judgment, the judgment will be affirmed.

If the trial court misnames a conclusion of law as a finding of fact, or vice versa, the appellate court will treat the finding or conclusion as if it were not misnamed.

The absence of findings, even if a party was entitled to them, is only reversable error if the absence was harmful. Meaning, if the appealing party could not adequately present his or her appeal without the findings, the absence was harmful.

If a party timely requested findings and timely filed a notice of past due findings, if necessary, the appellate court may abate the appeal to allow the trial court to issue missing findings. If this happens after some briefing has already been filed, the parties should request an opportunity to provide further briefing if necessary.

Appellate Attorney’s Fees

The appellate court does not decide questions of fact. They will not conduct an evidentiary hearing on reasonable and necessary fees, and it’s not something that can presented to the appellate court through affidavit.

A trial court will lose its plenary power long before an appeal has been completed. The Family Code provides methods to seek temporary orders pending appeal, but there are deadline associated with that process.

If your client won at trial, and if they win on appeal, nothing will be remanded to the trial court. This means the trial court’s plenary power will never be reopened. But your client will have been forced to defend against an appeal when they thought the case was over (after trial). Appellate fees are not something that can be handled later. They are best addressed at trial, and if not then, through a timely motion for temporary orders pending appeal.

That said, you do need to prove up the fees and will need testimony regarding the reasonable and necessary hourly rate, the tasks that will need to be completed, and the time it will take to complete those tasks. Typically, the fees will need to be made conditional on the other side appealing and losing. In other words, if the other side wastes your time with an appeal, your client can be reimbursed for the estimated fees after the fact. Before proving up appellate fees, if you are unsure about the appropriate numbers, talk to an appellate attorney to ensure your prove-up is solid.

Factual Sufficiency vs. Legal Sufficiency

The difference between these appellate challenges is similar to the trial court standards of winning at summary judgment versus winning at final trial. A legal sufficiency challenge asserts there was no evidence to support the judgment. If you truly have a legal sufficiency argument to make on appeal, this is generally more likely to win because it does not require as much deference to the trial court’s judgment. For example, perhaps a statute required three elements, and the party with the burden of proof only presented evidence of one or two of the elements. A legal sufficiency challenge argues the trial court simply could not have granted the relief it granted.

A factual sufficiency challenge is far more difficult to win but not impossible. This is a complaint that (usually) acknowledges that there may have been legally sufficient evidence to present a claim, but there was simply insufficient evidence to meet the burden of proof. This challenge is generally more successful when the burden of proof was more than simply preponderance of the evidence (e.g., clear and convincing).

Directed Verdict vs. Motion for Judgment

Judges issue judgments. Juries issue verdicts. While everyone in the room will know what you mean when you ask for a directed verdict at a bench trial, that is not a proper request.