APPELLATE ISSUES

APPELLATE ISSUES • FORMULATION OF THE CASE FOR APPEAL, PRESERVATION OF ERROR AND PERFECTION OF APPEAL: ETHICAL OBLIGATIONS & EFFECTIVE ASSISTANCE OF COUNSEL William B. Connolly Connolly & Shireman, LLP 2211 Norfolk, Suite 737 Houston, Texas 77098 713-520-5757 713-520-6644 (Fax) wbc@conlawfirm.com Juvenile Law Section Houston Bar Association 9th Annual Ad Litem Seminar September 06, 2019 Council on Recovery Houston, Texas * This is a modified version of Bill Thursland’s May, 2018 presentation

ADVISING THE CLIENT • RIGHT TO APPEAL • APPELLATE PROCESS • ANDERS PROCEDURES • WITHDRAWING AS COUNSEL

RIGHT TO APPEAL • ADVISE CLIENT BEFORE & AFTER TRIAL

APPELLATE PROCESS • APPEALS ARE DIFFERENT THAN TRIALS • TEMPER CLIENT’S EXPECTATIONS • TRAP 44.1(a) – REVERSAL CIVIL CASES • (Probably Caused Rendition Improper Judgment)

ANDERS PROCEDURES • FRIVOLOUS POINTS & ATTORNEY DUTIES • ANDERS PROCEDURES • READ In re P.M., 520 S.W.3d 24 (TEX. 2016)

GETTING OFF THE CASE • FILE MOTION ASAP AFTER VERDICT • ALLEGE “GOOD CAUSE” • INFORM CLIENT & APPELLATE ATTORNEY

PERFECTING THE APPEAL

NOTICE OF APPEAL • FILE 20 DAYS AFTER JUDGMENT SIGNED • 15 EXTRA DAYS FOR GOOD CAUSE • COA HAS NO JURISDICTION IF UNTIMELY

CONTENTS OF NOTICE • A PARENTAL TERMINATION OR CHILD PROTECTIVE CASE FILED BY STATE • PARENT PRESUMED INDIGENT • TRAP 25.19(d)

GET THE RECORD • CLERK & REPORTER’S RECORDS • DUE WITHIN 10 DAYS • REQUEST RECORD ASAP

THE BRIEF DUE 20 DAYS AFTER RECORD FILED ONE EXTENSION ROUTINELY GRANTED

FORMAT & WORD COUNT • TYPEFACE: 14 POINT; FOOTNOTES: 12 POINT • DOUBLE SPACED • BRIEFS: 15,000; REPLY BRIEFS: 7,500; PETITION FOR REVIEW & RESPONSE: 4,500 • MUST HAVE CERTIFICATE OF COMPLIANCE • ONLY ELECTRONIC FILING

AFTER COA JUDGMENT • OPINION V. MEMORANDUM OPINION • 15 DAYS FILE MOTION REHEARING • REVERSAL ONLY IF ERROR CAUSED IMPROPER JUDGMENT OR PREVENTED APPELLANT FROM PRESENTING CASE

SUPREME COURT • APPEALS DISCRETIONARY (10%) • PETITION MUST BE FILED WITHIN 45 DAYS OF JUDGMENT OR WHEN LAST MOTION OVERRULED

PRESERVING ERROR • OBJECTION MUST BE TIMELY & SPECIFIC • GET A RULING • MAKE SURE YOUR COMPLAINT APPEARS IN THE RECORD

SUGGESTIONS • BE SPECIFIC & CONCISE • NEVER ARGUE WITH THE JUDGE • USE OBJECTIONS JUDICIOUSLY

Strategic Tips for Advancing Appellate Arguments • Lead with compelling reasons for reversal • Reserve negative information for later inclusion in Statement of Facts and Arguments • Do not list extremely unfavorable Exhibits as lead material

Do not sequentially go through Statement of Facts in the way presented by DFPS at trial - Only feeds their theory of the case and argument • Feature favorable Exhibits in Statement of Fact - Exhibits are not afterthoughts • Review Exhibits for imperfections and law violations • “Reasonable efforts” • “Candid and fully honest” • “Follow all recommendations”

Look for non-apparent errors • Think outside the box • Order Extending Dismissal Date not in file • Check on Reporter Records from prior hearing - Some courts are in the habit of not recording the hearing, even though it is a Court of Record - It is impossible, under most circumstances, to obtain a reversal for a ruling or action or judicial admission if there is no record • Good practice for trial attorneys is request a record of all proceedings

Carefully analyze the law • Do facts allow a new way to make a good faith argument for a change in the law or an extension of existing law • Other persuasive authorities • DFPS Policy • Texas Administrative Code • Law Review

APPELLATE ISSUES