Tina Snelling
Is Power: Understanding The Process Which “Occurs” Post Judgment

is commonly thought that the job of an attorney is to secure a remedy against a
negligent party and a purpose of a judgment is to enforce such remedy, the
latter which is usually an award of damages.  This is a half truth.  In reality, the real “job of the lawyer is
not simply to find the negligent party but the negligent solvent party.”  Delving Into Deep Pockets, Time,
(June 13, 1983).  Hence, in the
guise of expanding the legal boundaries of “duty,” the majority of lawsuits
(and contemplated judgments) target the most solvent defendant.  Boyles v. Kerr, 855 S.W.2d
593 (Tex. 1993)  (Gonzalez, J) (Concurring Op. on Reh’g).  (“[T]his case has a lot to do with a search for a “ deep pocket” who can pay. If the purpose of
awarding damages is to punish the wrongdoer and deter such conduct in the
future, then the individuals responsible for these reprehensible actions are
the ones who should suffer, not the people of Texas in the form of higher insurance
premiums for home owners”).  Meanwhile, insurance
industries continue to close liability loopholes by adding exclusions to policy
coverage provisions.  Ledyard v. Auto-Owners Mut. Ins. Co., 137 Ohio App.3d 501, 739
N.E.2d 1 (Ohio App. 2000) (“A strict application of the exclusion could lead to the
absurd result of no coverage at all under the policy for any claims whatsoever”).

 The existence of
insurance and interpretation of coverage policy provisions can generate
disputes arising from the purchase of the property, construction, environmental
concerns, title, landlord-tenant relationships, partner relationships, personal
injury and bankruptcy.  It is probably no
exaggeration to say that anyone in the business who has not been involved in
litigation knows someone who has.  Yet
experience suggests that the appellate process is far less well understood than
the trial process, most likely because the vast majority of lawsuits settle
before trial and many cases that do go to trial do not proceed past judgment.

the appellate process is crucial.  An
intelligent trial strategy must assume the possibility of an appeal; and
planning for that possibility requires an understanding of the fundamental
differences between trials and appeals. 
Post-trial settlement discussions can’t be meaningful unless they
account for the parties’ chances on appeal and the fact that a published
appellate decision can establish new law that reaches beyond the interests of
the immediate parties to the case.

What Is The Texas Appellate System?
the civil side, there are two levels to the Texas state and the federal appellate
system, an intermediate reviewing court called the court of appeals and the
Supreme Court.  A party is entitled, as a
matter of right, to have a judgment by the court of appeals.  Review by the Texas Supreme Court, in
contrast, is discretionary and grants of petitions for review runs about 10%.  The Supreme Court’s review is limited to six
areas which have a common theme — either State revenues are involved or there
is an extremely important issue of law requiring resolution. [i]
the federal system, review by the United States Supreme Court is limited and
discretionary.  The practical result of
this limitation is that the intermediate federal court        and is the court of last resort for the
overwhelming majority of cases, and most of the law is developed in such courts.  It also means that different intermediate
courts can reach conflicting results that the Supreme Court may choose to let
stand.  These conflicts can be
substantial.  Texas has fourteen appellate districts, and
each district is, for all practical purposes, an autonomous court that is not required
to follow other Courts of Appeals’ decisions, although they usually do. [ii]  The federal system’s thirteen circuits are
likewise independent from one another.
people think the appellate process as something that happens only after a
trial.  But appellate courts have the
power to intervene earlier — to grant “interlocutory” review.  While, an appellate
court’s jurisdiction is established by constitutional and statutory enactments.
See, e.g., Tex. Const. Art. V, § 6; Tex. Gov’t Code Ann.
§ 22.220 (Vernon 2008)
Section 51.014 of the Civil Practice and Remedies Code
authorizes appeals of interlocutory orders.
Tex. Civ. Prac. & Rem.Code Ann. § 51.014. However,
authorized interlocutory appeals are a narrow exception to the general rule that only final
judgments and orders are appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001).
As a result, appellate courts strictly construe section 51.014. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia,
244 S.W.3d 455, 458 (Tex.App.―Dallas 2007, pet. granted)
; see also City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d
680, 686-87 (Tex.App.―Dallas 2003, pet. denied)
. Although parties
can obtain review of certain pre-trial orders as a matter of right, interlocutory
review is usually discretionary or very difficult to obtain.  It typically requires a showing of unusual
prejudice or some public importance usually provided by statute, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 51.014, of
the issue involved.

of the path one takes to the appellate court, the most important thing to
recognize is that appellate review is a fundamentally different process from a
trial.  Not just the rules, but the game
itself has changed.

What Is The Role of the Appellate Court?
all the rules that distinguish appellate courts from trial courts, probably
none is more “cast in stone” than the presumption in favor of the judgment
issued by the trial court. Texas
appellate courts frequently reiterate that “[a] judgment or order of the
lower court is presumed to be correct on appeal, and all intendment and
presumptions are indulged in favor of its correctness.” Beeks v. Odom,
7 S.W.2d 702 (Tex.
1888). Among the important corollaries of this rule is that it casts upon an
appellant the burden of showing not only that there was an error in the trial,
but also that the error was harmful — that it is “reasonably
probable” the case would have come out differently without the error.  Tex. R.
App. P. 44.1  This can be a very
heavy burden indeed.
presumptions favoring the judgment are buttressed by limitations on the scope
of review.  Appellate courts, as a
general rule, review errors of law — that is, errors in admitting or
refusing evidence, in instructing to the jury, and so on.  Review of the facts is, generally
speaking, almost always off limits, although Texas intermediate appellate courts
constitutionally possess such power.  Further,
even the commission of a prejudicial error will not generally secure a reversal
unless trial counsel objected to it.  This
is one of the reasons lawyers spend so much time making objections in the trial
court, even when they know the judge is going to rule against them.
another limitation on appellate review is the state of the evidence. In Texas there are two
standards by which evidence is reviewed: legal sufficiency and factual
sufficiency, treated, respectively as “no evidence” and “insufficient evidence”
challenges.  Meadows v. Green, 524
S.W.2d 509, 510 (Tex.1975). In reviewing a “no evidence” point,
either in the context of evidence in support of a jury finding or proper
submission of a jury question, Texas
appellants must consider only the evidence and inferences that tend to support
the finding and disregard all evidence and inferences to the contrary.  Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex.1995).  If there is
more than a “scintilla” of probative evidence to support the finding, a no
evidence challenge fails.  Stafford v.
726 S.W.2d 14, 16
(Tex.1987).  In reviewing  an “insufficient evidence” challenge, Texas appeals courts
must consider and weigh all the evidence and can set aside the judgment only
when it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust.  Cain
v. Bain,
709 S.W.2d 175, 176 (Tex.1986). To put it more simply, in Texas, the standard rule
is that the power of the appellate court begins and ends with a determination
as to whether there is any substantial preponderating evidence, contradicted
or uncontradicted
, to support the trial court’s or jury’s findings. 

cannot overstate the importance of this rule. 
It means that no matter how strong a party’s evidence may have been at
trial, if the other side won and there was is more than a preponderance of evidence
supporting its case, a Texas
appellate court  may not reverse for lack
of evidence.  Suppose, for example, a
contractor plaintiff testifies that at a weekly site meeting the defendant
owner gave oral approval for extra work, but the owner and everyone else at
that meeting denies the owner did so.  If
the jury finds for the contractor, that is the end of the matter as far as the
appellate review is concerned.  No matter
how many people contradicted him and no matter how credible they may have
seemed at trial, the appellate court will not revisit the issue.  In Texas,
this principle takes on added significance in the context of objections.  For example, suppose the contractor was not
at the meeting but testifies that his assistant was there and that the
assistant later told the contractor that the owner had approved the extra.  This is hearsay and properly
objectionable.  But if trial counsel
fails to object, any error is waived, the jury can properly consider the
evidence and the appellate court cannot second-guess the result, even the
objectionable hearsay is the only evidence supporting the verdict.  For obvious reasons, the substantial evidence
rule is probably one of the most frustrating for losing parties who feel in
their bones that the jury believed the wrong people.  It is also probably the rule most frequently
ignored or misunderstood by Texas
lawyers with little appellate experience. 
On the other hand, the hearsay rule, for instance, does not entirely
waive appellate error.  But, when a party
does not object to hearsay, appellate review is limited to plain error. See United States v. Polasek, 162 F.3d 878, 883 (5th Cir.1998).  The United States Supreme Court has defined plain error as error that is “clear,” or “equivalently ‘obvious,’” United States v. Olano, 507 U.S. 725, 734 (1993).  Another definition is that
the error could have been “ ‘clear under current law’ at the time of trial,” or in a case “where the law at the
time of trial was settled and clearly contrary to the law at the time of
appeal[,] it is enough that the error be ‘plain’ at the time of appellate
consideration.”   Hence, while
state and federal appellate courts articulate this rule differently and may
vary in how its applied, it is deeply ingrained.
principle that affects the implementation of all the others is this:  the record is reality.  The only thing the appellate court can look
at is the record created at trial — typewritten transcript of the witnesses’
testimony, the exhibits offered, and any papers filed with the court.  With exceptions so rare they are not worth
mentioning, even the most compelling evidence against a verdict cannot be
brought to the reviewing court’s attention if it was not presented at trial. Sabine Offshore Serv., Inc. v. City of Port
, 595 S.W.2d 840, 841 (Tex.1979) (appellate courts cannot look outside record to discover relevant facts
omitted by parties; rather, we are bound to determine cases on records as filed).  It is surprisingly common for clients to ask
their appellate counsel to rely on evidence outside the record, but the almost
invariable answer is that there is no way to do it.  This includes not only events completely
external to the trial, but also, in most cases, things that happened during
trial that were not captured by the record, such as an off-the-record colloquy
with the judge, a witness’s answer that the court reporter failed to catch and
gestures. Rogers v. State, 756 S.W.2d 332, 336-37 (Tex.App.―Houston
[14th Dist.] 1988, pet. ref’d)
. (“In addition to noting that appellant
failed to request that the record reflect the substance of the gestures or demonstrations, we
also note that he failed to object to them”).
                                                    Strategic Issues
procedural distinctions between appellate and trial courts mean that the
strategic environments are also very different. 
What worked in the trial court may fall flat in the Court of
Appeals.  Indeed, great trial lawyers
sometimes make terrible appellate advocates. 
The most obvious and dramatic difference is the extent to which an
appeal depends on written work.  Even
though complicated lawsuits frequently involve extensive briefing, most cases
end up turning on how the players communicate on a personal level — lawyers
and judges, lawyers and jurors, witnesses and jurors, and so on.  The development and trial of a lawsuit
generates an ongoing and complex relationship among these parties.  An unsuccessful motion may be reattempted
with new evidence; difficult legal issues may undergo multiple rounds of
briefing and argument; jurors may have weeks or even months to watch the
lawyers and witnesses in action and to assess their credibility; and the
lawyers may continually reshape the case as evidence unfolds.
often makes sense to bring in an appellate lawyer before a final judgment is
entered. Many an appellate lawyer has reviewed a record and seen an issue not
properly preserved, an argument not raised, or a document that never became
part of the record. Having an appellate lawyer on board during the trial phase
with an eye trained on these issues can often result in an increased chance of
success when the case reaches the appellate court. Associating appellate
counsel makes sense because it helps to maximize the chances of a good result
for your client. Associating early increases the likelihood potential appellate
issues will not be missed or waived for failing to preserve them.
as every lawsuit is unique, there is no definitive answer to the question of
when an appellate lawyer should be brought in to a case. Factors to be
considered include the complexity of the issues, the amount at stake, and the
likelihood of appeal. Lawyers get a feel for cases that will likely end up on
appeal, and bringing in an appellate specialist early can often help pave the
road ahead. Tasks appellate lawyers are well suited for include formulating
issues, litigation support, and crafting pleadings, proposed orders, jury
charges, charge conferences, and the like. The focus here is to either preserve
or avoid potential appealable issues in the event your client must take or defend
the trial courts rulings on appeal.
as a general rule, the appellate lawyer appears post judgment.  The “evidence” before the appellate lawyer is
the trial record, a sealed box — what is in it cannot be removed, and what is
missing cannot be added.  And most
important, the overwhelming majority of the appellate lawyer’s work goes into
writing briefs — typically two for the appellant (an opening and reply brief)
and only one for the opponent. 
Everything the appellate lawyer has to say must find its way into those
briefs, which the appellate judges will review in the secrecy of their chambers
before an oral argument that may last only a few minutes and may well have no
impact on the outcome of the case.  (It
is common in many Texas
appellate courts for the justices to have already reached a tentative “pre-submission”
decision and sometimes even to have written an opinion before oral argument.)
a reviewing appellate court never sees or hears the witnesses.  It reviews testimony solely from a “cold
record of words [where] the jury has the advantage of not only hearing the
testimony, but also seeing the witnesses and all the surrounding circumstances
that play a part in the processes of determining credibility.” Gunn Buick,
Inc. v. Rosano,
907 S.W.2d 628, 631 (Tex.App.—San Antonio 1995, no
writ).  This is, indeed, one of the
reasons appellate courts eschew any effort to second-guess the jury.
additional, and unfortunately very important, fact is that in main parts of the
country the appellate courts are seriously overburdened by escalating caseloads
without a corresponding increase in appellate judges.  In Texas,
it was recently reported that the pace of new appeal filings has increased by
nearly a third over the last decade. A new mechanism, called “docket
equalization” has allowed the Texas Supreme Court to alleviate the most
overburdened appellate courts by transferring cases to another appellate court.
Tex. Gov’t Code  Ann. § 73.001 (Vernon 2008).  One unavoidable result is even that the amount
of attention a judge and his or her staff in the newly docket laden transferee
court can or will devote to each case is shrinking.  For an appellant, this makes an already
difficult job even harder, not  to
mention is that the transferee court must apply the law of the transferring
forum, even if its own precedent is more beneficial to one of the litigants. Tex. R. App. P. 41.3.  In an arena where the rules favor the winner
below, a petitioning party’s counsel must find a way to capture the court’s
interest enough to get it to devote more to the appeal than a minimum share of
its already inadequate time; to persuade the court justice requires a reversal;
and to accomplish these results before getting the limited opportunity of a 20
or 30 minute oral argument to engage the court in dialogue.  Small wonder appellate courts affirm the vast
majority of judgments.
(To be continued in Part II)

[i].              (1)           a case in which the justices of a court
of appeals disagree on a question of law material to the decision;
(2)           a
case in which one of the courts of appeals holds differently from a prior
decision of another court of appeals or of the supreme court on a question of
law material to a decision of the case;
(3)           a
case involving the construction or validity of a statute necessary to a
determination of the case;
case involving state revenue;
(5)           a
case in which the railroad commission is a party; and
(6)           any
other case in which it appears that an error of law has been committed by the
court of appeals, and that error is of such importance to the jurisprudence of
the state that, in the opinion of the supreme court, it requires correction,
but excluding those cases in which the jurisdiction of the our of appeals is
made final by statute. 
Tex. Gov’t Code Ann. § 22.001.
[ii].             The
Court of Appeals are:   The First Court
of Appeals in Houston; the Second Court of Appeals in Fort Worth; the Third
Court of Appeals in Austin; the Fourth Court of Appeals in San Antonio; the
Fifth Court of Appeals in Dallas; the Sixth Court of Appeals in Texarkana; the
Seventh Court of Appeals in Amarillo; the Eighth Court of Appeals in El Paso;
the Ninth Court of Appeals in Beaumont; the Tenth Court of Appeals in Waco; the
Eleventh Court of Appeals in Eastland; the Twelfth court of Appeals in Tyler;
the Thirteenth Court of Appeals in corpus Christi; the Fourteenth Court of
Appeals in Houston.
Copyright © 2012 Tina Snelling