Appellate Law

Third Court Oral Argument Call-Out

By D. Todd Smith

<a href="http://www.blogged.com">
<img src="http://www.blogged.com/widgets/108858_ccf11e428092abd1de041b9b1491aeab_verify.gif" border="0" alt="Blogged.com Blog Directory" /></a>What does one have to do to get a case set for oral argument before the Third Court of Appeals?  It's a a rhetorical question I've heard others ask recently.

Early last year, I discussed the perception that oral argument in Texas appellate practice is dying a slow death.  I asked how appellate practitioners are supposed to hone oral advocacy skills if the chances that argument will be heard in any given case are less than 20 percent.  I also asked how, given these general statistics, less experienced appellate lawyers are supposed to acquire the number of arguments necessary to qualify for the board certification exam.

The State Bar Appellate Section offers one potential answer to both questions:  participate in its appellate pro bono program, which now covers both the Third Court and the Texas Supreme Court.  The Third Court apparently will give priority to cases in the program for oral argument, so signing up for the program (using this form) and taking these cases could help increase one's oral argument experience.  The Section is to be commended for this effort.

In a follow-up post, I wrote about how some Third Court justices have stated that they generally favor oral argument and have suggested including a separate statement in your brief explaining why oral argument should be heard.  (Coincidentally, the supreme court is considering a change to TRAP 38 that would acknowledge the validity of such statements.)  Since then, other Third Court justices have said that a formal motion requesting oral argument may be considered favorably, even if oral argument was initially denied.

Now for the call-out.

I'm handling a case in the Third Court that involves a seven-figure judgment rendered after a rare Travis County District Court jury trial.  The case turns on three main issues, all of which the Texas Supreme Court has written on in the past few years.  Both parties requested oral argument in their briefs.

After the briefing was complete, I happened to review the Court's online docket and found a reference mistakenly indicating that my opponent had not requested oral argument.  Although the parties received no formal notice, a subsequent online docket entry indicated that oral argument had been denied.

I filed a motion highlighting the mistake and setting out the reasons why the case should be heard on oral submission.  The other side opposed the motion on the basis that it would delay a decision, even though the parties had not been notified of a submission date and the case has not appeared on the Third Court's submission calendar.  Per this postcard, the Court denied the motion without comment.

How many seven-figure judgments on jury verdicts with good issues will the Court be asked to review in 2008?  Has the Court already decided how the case will come out, thus rendering any argument futile?  If not, why did the Court deny argument in this (or any other) case?

Full post as published by Texas Appellate Law Blog on March 18, 2008 (boomark / email).