Board Certification in Civil Appellate Law: Where, When, Why, What, and How

1. Board Certification in Civil Appellate Law:Where, When, Why, What, and How Texas Association of Appellate Court Attorneys Annual Meeting, June 1, 2011 Elana Einhorn * University of Texas School of Law With special thanks to Susan Vance, Mark Tractenberg, Heidi Bloch, Ginger Rodd, Daryl Moore

2. Where and When • Exam is Monday, October 17, 2011, here at the Frank Irwin Center (application deadline was May 16th) • All the basic information you need is on the TBLS website: • http://www.tbls.org/Cert/AttyGetStarted.aspx • http://www.tbls.org/pdf/attexmap.pdf • Six-hour exam: Three hours to complete three essays in the morning; three hours to complete 100 multiple choice and true/false questions in the afternoon • http://www.tex-app.org/articles/bloch_boot08.pdf

3. Why?http://www.tbls.org/pdf/attexmap.pdf

4. What: Multiple Choice & T/F • Three hours to answer 100 questions, including about 10 on federal procedure and 10 on ethics, including the Disciplinary Rules and Standards of Appellate Conduct • Less than two minutes per questions, but the questions vary in difficulty, so if you are struggling, move on to the next one (keeping track of your place on the bubble sheet) – every point counts. • Read the questions and answers carefully, e.g.: • A. I and II only; • B. None; • C. I and III only; • D. I, II, III, and IV.

5. What? Essays Three essays; roughly one hour for each question But – the questions typically have subparts that are not worth the same amount of points. Budget your time accordingly. Covers hypothetical state-court fact scenarios from pretrial through the Texas Supreme Court Essays focus on issues that a real-world practitioner might have to confront. Examples: Has a particular argument been preserved? What arguments could be raised to support or attack preservation? Are multiple routes to appellate review available? What are they? What are the pros and cons of pursuing these different routes? How would you advise the client to proceed if the goal is to seek appellate review? How would you advise the client if the goal is to resist an appeal? What steps can be undertaken by a judgment creditor while the appeal is pending? What are the risks of undertaking those steps? What can an appellant/judgment debtor do to resist such steps?

6. What: Essays Focus on demonstrating “appellate judgment:” the ability to show not just knowledge of technical rules, but also an appreciation of: the uncertainties and ambiguities in those rules; the practical effects of those uncertainties and ambiguities; how a particular fact pattern arguably could be approached from several different angles based on potentially available procedures; and how to recommend a course of action that accounts for uncertainties to maximize the chances of achieving a client's goals

7. What: Essays You’re given a hypothetical in which a trial court denies a motion to compel arbitration, and you are asked to discuss potential appellate remedies. A baseline answer would say that an order denying an application to compel arbitration under the Texas Arbitration Act is an appealable interlocutory order under TCPRC §171.098(a)(1). A better answer would explain that the available appellate remedies would depend on whether the arbitration provision was governed by the Texas Arbitration Act or Federal Arbitration Act or the Federal Arbitration Act, and that although an order denying arbitration under the Texas Act is an appealable interlocutory order, an order relating to an arbitration provision that is governed by the Federal Act is not appealable and is subject to appellate review via mandamus. [could throw in the seminal case of Jack B. Anglin Co. v. Tipps.]

8. What: Essays An even better answer reflecting “appellate judgment” would explain that there are two potentially available routes to appellate review depending on what kind of arbitration agreement is at issue, and would go further by recommending a strategy to cover all the bases if it is not clear whether the particular agreement at issue falls under the Texas or Federal Act. A suitable recommendation might be to pursue both interlocutory appeal and mandamus simultaneously if it is not clear whether the state statute or the federal statute applies. A home-run answer would discuss all of the above and further discuss a recent recommendation by one Texas Supreme Court justice to dispense with the need for parallel proceedings such that either an appeal or a mandamus would protect the appellate rights of a party seeking to compel arbitration. See In re D. Wilson Constr. Co., (Brister, J., concurring).

9. How: Exam Day Tips • Sign up to use laptop for essay portion of the exam. • Pay attention to the call of the questions on both parts. For essays typing will allow you to insert developing thoughts into proper subpart, and maximizes point opportunities if different graders look at compartmentalized subparts. • Write full and complete essays, not just “yes” or “no,” or “I don’t know for sure, but of course I would always look that up.” • Manage your time on both sections; pick up time on “easier” questions • Everyone I talked to said some version of “Answer the question asked. Don’t spill your guts with everything you know about mundane non-issues. Did I mention answer the question asked?” • Follow the rule cardinal of legal writing – remember the audience. Make it easy for the reader reading many essays in a row. Use topic sentences, numbers, follow some logical sequence (IRA C). Take a little time to outline. Don’t forget public policy – if you are asked to extend a rule to a new situation, why would that make sense or be good extension of the law?

10. How to Prepare • Main sources to study: • CLE papers from at least last two years of UT and State Bar appellate seminars (including Boot Camp/Appellate Practice 101) • Texas Rules of Civil Procedure, Evidence, Appellate Procedure; Federal Rules of Civil Procedure, Appellate Procedure • Last two years at least of Texas Supreme Court cases on appellate, procedural, or evidentiary issues (best are TxSct updates and Osler’s e-mail summaries) • O’Connor’s: Civil Trials, Civil Appeals, annotated Civil Practice and Remedies Code – O’Connor’s or other (especially for updates) Additional: O’Conner’s Texas Causes of Action • Recent TxSct cases in which Exam Committee members were counsel (Daryl Moore, Dana Livingston, Wendell Hall, Ginger Rodd, Rob Gilbreath, Rick Thompson, Sharon Calloway, Kendall Gray).

11. How to Prepare • Build your own study tools • Create your own timeline for state/federal bench/jury trial all the way through the supreme court • Draft your own outline • Complete the outline within AT LEAST one week of the exam date, and dedicate that final week to intensive review of the outline • Lock yourself in a hotel room the weekend before the exam • Make some “bite size” study tools that you can carry with you and look at when you have small windows of study time. • Examples: topical outlines, flip cards for areas you just have to memorize, timeline sections (see, e.g.,O’Connor’s timetables), wall/mirror charts, recordings.

12. How: Spend Time on the Perennial Exam Favorites Interlocutory appeals (CPRC § 51.014, memorize). Appellate timetables/deadlines (state and federal). Supersedeas: Elaine Carlson is presenting her updated paper on this tomorrow at the UT conference. Read it. Trial court plenary power. Perfecting appeal/record on appeal. Injunctive relief, requirements/effects. Appealable rulings (state and federal). Texas Supreme Court jurisdiction.

13. How: Spend Less Time On . . . You don’t need to know rule numbers, name of cases, other than seminal decisions—just know that “The Texas Supreme Court has held . . .” (but if you do know case name, throw it in). You are not really expected to know courts of appeals’ cases—just big areas of conflict, uncertainties. Lowerprobability that events occurring one or two months before the exam will be tested (generally considered “too hot too touch” unless a clear and dramatic change in the law). BUT if you see an interesting tidbit in your studies, consider making a card. What catches your eye might also have caught the Committee’s.

14. How: Federal and Ethics • Best tip: focus on when federal and state rules diverge and when they are the same • Study Sources: • Federal: O’Connor’s Federal Rules of Civil Trials for both FRCP and FRAP, particularly timetables • A good digestible paper on the FRCP 2009 time-computation amendments: http://www/mayerbrown.com/publications/article.asp?id=8160&nid=6 Texas Disciplinary Rules of Professional Conduct, Standards of Appellate Conduct --note that appellate standards may appear as issues in essay questions

15. Thoughts from some Board-Certified Appellate Attorneys • When we got out of the test, we were freaking out because we felt like not only did we not know the answers to most of them, but we didn’t even recognize the questions. We were hysterical over the lunch break. • My thoughts on the exam are pretty much "holy god, how did I ever pass this, there's no way in the world I could pass it now."  • I crammed for three and a half days. I wore my favorite yoga pants —the ones that are a little too big and are totally comfortable. I took over the dining room table. It felt a lot like law school. Like all test-takers, I was looking for the shortcut, the secret bullet, that was going to get me through this exam. I found a friend’s outline and I downloaded two years worth of CLE papers on appellate procedure. My friend is smart; she passed; she is young and she took two weeks off work to make this outline! I knew I couldn’t study for that long, so hand me the outline. I would memorize it! It was a great outline. But my studies (and later taking the test) confirmed it’s not the outline that gets you a good grade on the test, it is the process of making the outline. If I had read through all of the appellate rules before the exam, instead of just reading over my friend’s shorthand explanations, I would have been much better prepared for the exam. • Remember that the Texas Supreme Court does not have jurisdiction over factual sufficiency! • Study, study, study, and study some more!