October 3, 2022

Volume XII, Number 276


October 03, 2022

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The Power of Time Re: State and Federal Appeals

It's that time of year, Campers.

All the cool kids are about to go to Austin for that one event where the glitterati are bound to glitter.

UTCLE's 23rd Annual Conference on State and Federal Appeals will soon be upon us, June 13-14 in Austin, to be specific.

Clearly, they have mistaken me for a UT grad, because I always seem to have a chance to hold forth and flap my gums at this event.

This year, they were kind enough to give me a very thorough paper written by someone else, Charles Frazier, about "Bombshells in the Appellate Record."

After the jump, one little thought about avoiding those bombshells.

Charles was surely right. Sometimes it can feel like there are bombshells in the record, especially if you were not involved in the trial. Who knows what evil (or malpractice or sanctionable conduct) might appear with the next turn of a page?

And if you've already agreed to take on the appeal, you find yourself standing in front of a panel of appellate judges holding a giant, stinking, flaming bag of---

You get the picture.

So let's take the bombshell analogy and learn from it.

Imagine that you discovered yourself in the middle of an actual mine field instead of a metaphorical one. If you knew that one false move would kill you, would you hurry? Would your run? Would you dance or skip like Gene Kelly on a rainy boulevard?

Probably not.

If you were smart, you'd take your time, try to figure out where the dangers were, and move very carefully to avoid them.

In reading and updating Charles's paper, it struck me that the same approach holds true with our metaphorical mine fields.

Sure, law practice includes deadlines and occasionally there are time pressures that we cannot avoid. But we'd save ourselves a lot of grief if we could just gain as much time for deliberation as possible, and then use it wisely:

  • Approach what trial lawyers tell us with a healthy dose of skepticism. They believe what they're saying, but their memory is colored by the pressure of trial.

  • Make evaluation and the right to withdraw a part of the fee agreement with the client.

  • Delay the actual first appearance in the case until you know where the bombs are. Do you really think the trial court is going to grant a new trial just because YOU are in the house?

  • If judgment hasn't yet been entered, slow the parties down. Winner and loser both could profit from a "time out."

  • If clocks are ticking and deadlines are approaching, BE HUMAN. Get to know all the folks involved. Get some agreed extensions and schedules in place.

  • And if sober action is impossible under the circumstances, learn when to say when.

No one can make you counsel of record without your consent, and "no" is a very powerful word.

But the "Power of No" is a post for another day.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume III, Number 138

About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...