Easy with that Sharpie: Over-redaction and attorneys’ fees.

An interesting decision came out of the Ft. Worth Court of Appeals on attorneys’ fees and redactions, McGibney v. Rauhauser, 549 S.W.3d 816 (Tex. App.—Fort Worth 2018). Parties that prevail in certain cases (breach of contract, for example) are able to collect their attorneys’ fees from the losing party. In order to collect the fees, the attorneys must show that the fees charged were “reasonable and necessary,” among other things.

As litigators are all too familiar, lawyers should keep contemporaneous records of their work and billing records in order to prove up the fees at trial. These “fee bills” are often redacted in order to preserve potentially privileged information. Prior to this decision, there’s been little guidance on the topic of how much redaction is too much redaction.

The Ft. Worth Court of Appeals ruled that a large fee award was not reasonable due to heavily-redacted entries. The entries must allow the court to conduct a “meaningful review” so that it is able to determine that the amount requested is not “excessive or extreme, but rather moderate or fair.”

¡Ojo, litigators! Next time you’re taking the black marker to that fee bill, remember this cautionary tale.

Tyler Talbert practices law in Waco, McClennan County, Texas, with the firm Scanes & Routh. He focuses on appeals and appellate law and has practiced before numerous courts of appeal, including the Supreme Court of Texas and Fifth Circuit. 

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Judge John Neil to fill 10th Court of Appeals vacancy.

Governor Greg Abbot appointed Judge John Neil to fill the 10th Court of Appeals (Waco) vacancy. Justice Scoggins announced he would retire mid-term, leaving an opening on the court. Judge Neil is a long-time trial judge of the 18th District Court in Johnson and Somervell Counties. He is expected to start his new job on the three-judge intermediate appellate court in Waco on Feb. 20, joining Chief Justice Tom Gray and Justice Rex Davis on the court.

Neill will have to run for election in 2020 and again in 2022, when Scoggins’ term expires. One cool tidbit about Neil: he is a founder of the Court-Appointed Special Advocates (CASA) program in Johnson County.

10 cases set for Oral Argument the first week of December – SCOTX.

The Supreme Court of Texas has ten cases set for oral argument December 4, 5, and 6th. The Court puts together very user-friendly summaries of the cases and issues, which I’ve included below. These will obviously be hot topics of conversation at the Thanksgiving dinner table, so settle in and take a look.

Of note, there are three different cases (in red) on breach of contract, fraud, and fraudulent inducement. These issues pop up commonly for litigators. Frequently, breach of contract claims are paired with fraud/fraudulent inducement claims. One party argues that the other breached the contract, or alternatively, lied about the contents of the agreement. Inevitably the parties are left to argue whether extrinsic evidence is admissible to establish breach/fraud or whether the parol evidence rule bars the evidence. These cases cover a range of issues on breach, fraud, and fraudulent inducement; they should be enlightening on a range of topics.

Also the Texas Citizen Participation Act (TCPA) has made its way back to SCOTX (in blue). If you’re not familiar with the TCPA then I envy you. This is not the first time the Court has considered TCPA, and I’m sure it will not be the last.

  1. Mercedes-Benz USA LLC, et al. v. Carduco Inc.
    •  In this case alleging fraud underlying a contract the issues are (1) whether reliance is precluded because the alleged misrepresentations conflict with the contract; (2) whether the contract’s merger clause disclaiming reliance precludes fraud; (3) whether evidence supports that each defendant had a disclosure duty or gave affirmative misrepresentations; (4) whether separate jury instructions should have been presented on each fraud theory; (5) whether the appeals court improperly sustained a spoliation instruction; and (6) whether the appeals court erred by remitting punitive damages, from $100 million to $600,000.
  2. Barrow-Shaver Resources Co. v. Carrizo Oil & Gas Inc.
    • In this challenge to the appeals court’s take-nothing reversal from a contract-breach and fraud verdict, the issues are (1) whether the court erred by considering a deleted provision from negotiations to interpret the contract and (2) whether the court erred by rejecting a fraud claim on reliance grounds based on an oral promise to act when the written contract omitted that.
  3. In the Interest of A.L.M-F., et al.
    •  The issue in this parental-rights termination appeal is whether the trial court erred by denying the mother’s jury-trial request in de novo hearing.
  4. Chambers-Liberty Counties Navigation District, et al. v. State of Texas 
    • Consolidated with case below
  5. In re Sustainable Texas Oyster Resources Management L.L.C.
    • In this contest over a lease by the navigation district to the oyster-production company, to use submerged land to grow and harvest oysters, the issues are (1) whether statute overcomes the district’s governmental immunity claim; (2) whether the district commissioners have authority to lease the land in this case; (3) whether the state properly alleged an ultra-vires claim against the commissioners for restitution; and (4) whether Sustainable Texas Oyster Resources has standing in this appeal.
  6. Baylor Scott and White, Hillcrest Medical Center v. Ruthen James Weems III
    •  The issue is whether a fraudulent-misdiagnosis claim falls under the health-care liability statute and requires a threshold expert-report requirement.
  7. University of Texas M.D. Anderson Cancer Center v. Lance McKenzie and Deborah Diver
    •  The issues are (1) whether M.D. Anderson used tangible personal property during surgery, defeating Anderson’s immunity defense, and, if so, (2) whether that use proximately caused the surgery patient’s death.
  8. The Dallas Morning News Inc. and Kevin Krause v. Lewis Hall and Richard Hall
    •  The principal issues in this challenge under the Texas Citizens Participation Act are (1) whether the Halls’ partner compounding pharmacy showed clearly and specifically that the newspaper’s report the company was under federal investigation was substantially false and (2) whether a reasonable reader would infer the pharmacy’s guilt from the newspaper’s reporting that included allegations in lawsuits, a federal investigation and the context of the broader controversy over compounding industry practices.
  9. International Business Machines Corp. v. Lufkin Industries LLC
    •  In this appeal from a jury finding for Lufkin on its claims for fraud and fraudulent inducement, the issues are (1) whether reliance was clearly disclaimed despite contract language that exchanges between IBM and Lufkin staffs about project goals and objectives “is the basis of our understanding”; (2) whether fraudulent-inducement damages preclude recovery for fraud; and, assuming liability for fraud and fraudulent inducement, (3) whether Lufkin proved its damages by legally sufficient evidence; (4) whether Lufkin suffered damages for contract breach; and (5) whether Lufkin is bound by incorporation of a clause limiting damages the trial court excluded because of a verification issue.
  10. Linda Ferreira v. Douglas W. Butler and Debra L. Butler
    •  The issue is whether a default is imputed to a probate applicant presenting a will that had been filed before but outside the requisite time restriction.

 

For the truly dedicated, the Court offers video and audio recordings of all Oral Arguments!

Where the blue wave crashed: Texas appellate courts

19 justices occupy the Dallas and Austin appellate courts, all republicans. 12 of those seats were up for election last night. Democrats won every single one of them. Now what?

Like it or not, judicial elections in Texas are a partisan affair. Little-known lawyers are elected (or appointed) because of their proximity to a political figure. And long-tenured, sitting justices are tossed out based solely on their party affiliation.

The benefits, or not, of such a system, are up for debate. See, e.g., “Judges Who Are Elected Like Politicians Tend to Act Like Them.” What is not up for date are last night’s results. The “blue wave” didn’t carry Beto to victory , but that wave certainly crashed hard in Texas appellate courts.

Take a look at two appellate courts for example, the Third Court of Appeals in Austin and the Fifth Court of Appeals in Dallas.

Fifth Court of Appeals (Dallas)

Prior to last night’s election all thirteen justices were Republican. Last night, eight of those seats were up for election. Democrats took all 8. A summary of races and outcomes:

  • Chief Justice*
    • Douglas Lang (former Place 11)
    • Robert Burns 
  • Place 2
    • David Evans (I)
    • Robbie-Partida-Kipness
  • Place 5
    • Craig Stoddart (I)
    • Erin Nowell
  • Place 9
    • Jason Boatright (I) 
    • Bill Pederson
  • Place 10
    • Molly Francis (I) 
    • Amanda Reichek
  • Place 11
    • John Browning
    • Cory Carlyle 
  • Place 12
    • Jim Pikl
    • Ken Molberg
  • Place 13
    • Elizabeth Miers (I) 
    • Leslie Osborne 

*Repubs, red; Dems, blue; Incumbent (I); winner, bold. You know the drill.

Eight out of thirteen. That turnover is remarkable. Politics aside, any organization that replaces almost two-thirds of its members is going to have serious shifts in institution and identity. It’s worth taking a moment to give a shout-out to staff attorneys and court staff who will keep the machine chugging along during this major transition.

Third Court of Appeals (Austin)

So too in Austin, all six justices are republican. Last night four of those seats were up for election. Again, Democrats took all 4.

  • Place 2
    • Cindy Olson Bourland (I)
    • Edwards Smith
  • Place 3
    • Scott Field (I)
    • Chari Kelly
  • Place 5
    • David Puryear (I)
    • Thomas J. Baker
  • Place 6
    • Mike Toth
    • Gisela D. Triana 

That turnover will have serious impacts on the court and those practicing in front of it in the near future.

So what does it all mean? 

On my college bookshelf I had a book titled “What does it all mean?” My roommate would often ask if I had finished the book and could finally reveal the comprehensive, unifying theory of the everything. I don’t think that I ever had a satisfying answer (or even finished the book). It is, nonetheless, almost always a fine question to ask: what does it all mean? I’ll offer (borrow) two takeaways: 1) the law should stabilize political upheaval, and 2) experienced appellate practitioners are as valuable as ever. 

“Judges are not politicians, even when they come to the bench by way of the ballot”

Whereas politicians must respond to the preferences of their supporters, judges must strive for objectivity and independence. Indeed, as Hamilton (again, borrowing from those smarter than myself) noted in Federalist 78:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community

Behind closed doors many judges will tell you that politics have no place in the court room. Partisan elections are simply an accepted, though unwelcome, way of life. It defines how a judge gets to the bench, but not how she acts once she is there. To that effect, there will undoubtedly be changes. But how we actually practice law should remain constant. The law, not politics, will buoy the courts.

And, as a closing thought, D. Todd Smith’s observation over at Texas Appellate Law Blog, hits the mark:

In this new reality, I think the role of experienced appellate practitioners will be more significant than ever. We are most effective when we assist courts in understanding the case, the law, and how to reach a reasoned outcome faithful to both.

It is, regardless of political affiliation, a fascinating time to practice law before these courts.

How I learned to stop worrying and love the TAMES portal

The TAMES portal is a handy tool to track the status of appeals. Here are some of its most useful features.

Clients (and sometimes even attorneys) too often view the court of appeals as a black hole. The case enters, when and where it will pop out, or what it is doing in there, nobody knows!

Let there be light! The Texas Appellate Management E-File System or TAMES provides answers to these pressing questions. The TAMES portal is a handy tool to track the status of appeals. I’ve noticed that it is a little-known, underutilized resource among many attorneys. It can prove a valuable resource to ease your clients’ minds as well.

From the TAMES portal you can easily search (by name, filing number, court, date, attorney, etc.) and locate a case. From there, you have access to a wealth of information, including the following categories:

  1. Case name/Cause Number (and other basic information)
  2. Appellate Briefs
  3. Case Events
  4. Calendars
  5. Parties & Counsel

I want to key in on a couple of these categories and what they provide:

Appellate Briefs

 All filings by the parties and the court are accessible electronically. Briefs, motions, orders, and opinions are all available. If you need to locate, link, or access any of the relevant filings, you can do so right from the TAMES system. I’ve also found that this is a helpful resource for clients. They are able to go online and see that the case is indeed progressing despite the time between initial filing and final disposition. And the more intrepid clients can study the briefs themselves.

Appellate Brief

Case Events

This area provides a clean timeline of the case. When was the notice of appeal filed; when is the reply brief due; when did SCOTX receive the petition for review? TAMES answers all of those questions. Again, I find this is a helpful resource for clients. Additionally, when taking on a new case (or digesting an old one) this is usually the first step.

Case Event

Calendar

What’s the court of appeals doing with my case?” Good question! The calendars portion of TAMES is a (small) glimpse into the inner workings of the court and where the case is in the process. You can see whether the case is at the briefing stage, it has been submitted to the court,  it is holding for some other reason, or any other event.

Calendar

Check it out! 

In fairness, TAMES doesn’t take all the guesswork out of the appellate process. You’ll still at times get cryptic messages and puzzle over their meaning. However, the TAMES portal is an invaluable resource that sheds light on your appellate case. If you’ve not ever checked it out, go give it a try!

Telling a compelling story on appeal.

The First Court of Appeals in Houston overturned a $17.7 million verdict in the “Baylor bridge” drowning case. The case, Austin Bridge & Road, LP  v. Raquel Suarez, et al, is available here. The court held, in short, that workers’ compensation barred the negligence suit and there was no evidence of gross negligence against the contractor.

One of the interesting features of the opinion was the strikingly spartan rendition of facts regarding the worker’s death. Four sentences. That’s it.

Suarez, an employee of Derr & Isbell, performed steel work for the building of a bridge across the Brazos River in connection with the construction of Baylor University’s McLane Stadium (the Project). On January 28, 2014, Suarez was working on a “man-lift” supported on a barge on the Brazos River. He and his coworker Terry Watson—who was operating the man-lift at the time of the accident—were both wearing safety tethers, or “man-ties,” connecting them to the lift. The lift fell off the barge into the Brazos River. Watson was able to swim to safety, but Suarez was unable to free himself and drowned.

The brevity should signal the outcome of the case. In overturning a verdict in favor of a worker who suffered a horrific death, it may be best omit the traumatic details. The Appellees’/Plaintiffs’ Brief offered little more in the factual background section (waiting until later to reveal more facts).

While succinct writing is important, using facts to tell a captivating, persuasive story is critical. This case offers tailor-made facts to tell a compelling story.

Consider these chilling details from trial.

  • The water was cold and dark. Suarez could not see anything, descending disoriented and lost into the pitch black.

  • Suarez sank deeper and deeper, dragged downward by his safety vest.

  • He tried to hold his breath, lungs burning. But that would only last for so long. After about 90 seconds, conscious the whole time, his brain forced him to breathe. A reflex.

  • When he did, there was nothing but chilly, dark water; Suarez inhaled and immediately started coughing it back out. For more than two minutes Suarez sucked in water and tried to cough it back out at the same time.

  • This continued for five to eight minutes, burning, coughing and trying to breathe, until his brain finally ran out of oxygen and he died.

These are grim, moving facts.  These are the details, the stories, the trauma that trial attorneys are so good at getting out and persuading a jury with (clearly to great effect here given the size of the verdict). On appeal, the facts should be no less appealing. They should be sharpened, made an even more dangerous hook. 

Use the facts available to you to tell a compelling story on appeal. As legal-writing guru, Ross Guberman, instructs: “Show, not tell: let choice details speak for themselves.” Facts alone can’t win the case; you must still fool with the pesky law. But crafting a compelling story that gives the reader a reason to want to find for you can make the all the difference in how the law is applied.

 

Tyler Talbert practices law in Waco, McClennan County, Texas, with the firm Scanes & Routh. He focuses on appeals and appellate law and has practiced before numerous Courts of Appeal. Before becoming an attorney, he graduated from Case Western Reserve University School of Law and Baylor University. 

Trial Court must actually watch video before ruling on its admissibility.

In a case of some interest in the evidentiary/employment context, SCOTX released its opinion in Diamond Offshore Services Limited And Diamond Offshore Services Company, Petitioners V. Willie David Williams, Respondent. 

The underlying case was a personal injury suit for a workplace accident. The employer believed the employee was exaggerating and so hired a private investigator to follow and film the employee performing various physical activities. The trial court excluded the video without even viewing it. The jury returned a verdict for ten million dollars in favor of the plaintiff.

On appeal, the Supreme Court of Texas reversed, holding:

We hold that, except in rare circumstances not present here, when the admissibility of a video is at issue, the proper exercise of discretion requires the trial court to actually view video evidence before ruling on its admissibility.

The Court went one step further, conducting its own 403 analysis, holding that the video was admissible. Excluding the video without first watching it constituted an abuse of discretion and SCOTX reversed and ordered a new trial.

A clip of the excluded video is available here.* **

*Not actually the clip in question, but a strikingly relevant scene from The Office.

** Some mildly inappropriate language–forewarning for those children who are also avid readers of Texas Appellate Updates.

Tyler Talbert practices law in Waco, McClennan County, Texas, with the firm Scanes & Routh. He focuses on appeals and appellate law and has practiced before numerous Courts of Appeal. Before becoming an attorney, he graduated from Case Western Reserve University School of Law and Baylor University.