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Texas Supreme Court Panel: Electronic Briefs, Persuasive Writing, and What?s on the Docket

By Don Cruse

Thursday’s meeting of the Austin bar appellate section featured a panel of Texas Supreme Court Justices. The panel included Justice Nathan Hecht, Justice Phil Johnson, and the Court’s newest member, Justice Lehrmann. The moderator was former Justice Brister.

The format was Q&A, with a few topics that should be of interest to readers of this blog.

Electronic briefs — who likes them, and what do they like?

Of the three panelists, two (Hecht and Lehrmann) said that they are already reading both petitions for review and merits briefs online. The other (Johnson) said that he reads on paper but — after a jocular exchange with Justice Brister — said that he does occasionally refer to the electronic version if he hasn’t taken a whole case file home.

The panel was asked about hyperlinks in briefs. Justice Hecht said that he liked them and found that they made his job easier, as did Justice Lehrmann. Both Justices expressed some sensitivity about the cost involved in making these more complicated briefs.

(If you want some tips on how to make your own, you can of course check out my page collecting information about how to make e-briefs. You might also consider using hyperlinks only selectively, to highlight the most important authorities. That is one of the emerging debates about the best way to make e-briefs, but the selective approach does conserve both your resources and the readers’ attention.)

The Justices were also asked about footnotes — one of the great legal-writing debates of the last decade. Justice Hecht and Justice Lehrmann both agreed with the Bryan Garner position that the brief was often easier to read when legal citations were moved to the footnotes. Justice Johnson preferred, instead, that footnotes be limited to items such as record citations. (“If it’s important enough to be in the brief, it ought to be in the text.”)

Those of you keeping score at home might notice that the two Justices who read briefs online are also the most open to having the citations in footnotes.

Writing persuasive briefs

The panel was asked how they felt about argumentative statements of fact. Justice Johnson and Justice Lehrmann both said that they thought this was a place where advocates sometimes were unprofessional. Justice Johnson expressed his frustration at situations where, after reading the two statements of fact, it looked like there were two different cases. Justice Lehrmann noted that open emotional appeals in the fact statement detracted from the persuasiveness of the brief.

Justice Hecht’s view was more pragmatic, that he thought good statements of fact advanced the argument in how they were constructed. But he did note that it was a serious blow to an advocate’s credibility if they left out a critical, harmful fact that was then revealed by their opponent.

On a similar note, the panel was asked about opening paragraphs (what are sometimes called “preliminary statements”). None of the Justices thought it was useful to include the usual formulaic “COMES NOW…” text. On the other hand, the Justices warned against going overboard too soon because your credibility as an advocate is still at stake.

Amicus briefs

As part of an answer about the role of the appellate bar, Justice Hecht noted that he is seeing amicus briefs in more cases, “which I think is helpful.”

Issues that are dominating the Texas docket

The panel was also asked what issues are dominating the docket. The first answer: “immunity.” The Court also noticed a recent trend to takings cases, medical expert reports, and some disputes about the reach of tort reform.

Justice Hecht noted that the Court doesn’t see as many common-law cases as in past years. Instead, the docket is dominated by statutory construction or contract interpretation.

With recent personnel changes, will the Court be less contentious?

The newest member, Justice Lehrmann, answered a question about whether the Court would be issuing fewer dissents after the retirement of Justice O’Neill (a noted dissenter). As her replacement, Justice Lehrmann may have a unique perspective on the question.

Her answer: “No.”

(If you have registered with DocketDB, you can check out the updated 2011 Texas Supreme Court voting statistics covering opinions from September 2010 to the present. Although the sample size is pretty small, some patterns are starting to emerge.)

Full post as published by Supreme Court of Texas Blog on January 21, 2011 (boomark / email).