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The presentation seeks to educate trial lawyers on issues that arise following a jury verdict, including: formulating or opposing a final judgment from the verdict (including interest and other elements); calculating post-verdict deadlines; when the judgment is "final" for purposes of appeal vs. execution; superseding the judgment (what and for how long; options); preservation of error; perfecting appeal and getting the record; advising the client on realistic appellate expectations (timing, cost, and outcomes)—including what to prove up regarding appellate attorney's fees.

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  • 1. You Have a VerdictNow What?Guidance on Perfecting and Pursuing a State Civil AppealD. Todd Smith Smith Law Group, P.C.www.appealsplus.com St. Marys University School of Law Alumni CLE Webinar SeriesAugust 9, 2012 1

2. Overview You have obtained a jury verdict in state trial court What are the critical next steps? Strategies for obtaining appellate attorney fees Formulating and opposing a final judgment from the verdict Post-verdict preservation of error Enforcing and superseding the judgment Initial steps toward taking an appeal2 3. First Step: Take Off the Trial GogglesDude, my case looks AWESOME with these on. 3 4. Trial Goggles My trial lawyer said that all the hard work has already been done and were TOTALLY going to win the appeal.4 5. Estimating Appellate Attorney Fees Start thinking about this long before trial Be sure and designate an expert to testify aboutappellate fees and prove them up at trial Dont count on a copy and paste job Most appeals are decided on briefs, so its a mistake to just re- hash what you did in the trial court Requires thinking about the facts and issues like an appellate justice would 5 6. Estimating Appellate Attorney Fees (contd) The form book problem $5,000 is not a sufficient award Lawyers and judges need to be broken of this mindset Several factors to consider in estimate Pre-and post-judgment activities Perfecting appeal, pre-briefing activity, legal research, drafting and editing, analyzing your opponents brief, etc. Texas Supreme Court proceedings, if any Post-appeal activity Even if you dont get everything you ask for, the exerciseis useful in conditioning the client6 7. Crafting a Proposed Judgment Should you file a motion for judgment? If you lost, and youre the movant, approve as to form only and use prefatory language (775 S.W.2d 632) Otherwise, risk waiving appellate rights Judgment elements Describe the parties and proceedings Describe any relief awarded on the merits Any attorney fees awardedconsider detailed breakdown Pre-and post-judgment interesta (boring) CLE talk unto itself Costs Language of finality and execution Date and signature line for judge7 8. Post-Verdict Error Preservation Most errors are preserved during trial, but be aware ofrules for post-verdict preservation In jury cases, must file a MNT within 30 days of judgmentto raise Factual sufficiency Complaint on which evidence must be heard (i.e., jury misconduct or newly discovered evidence) Inadequacy or excessiveness of damages Incurable jury argument not already ruled on8 9. Post-Verdict Error Preservation (contd) In jury cases, preserve legal sufficiency challenges byone of the following: Motion for directed verdict Motion for JNOV Charge objection Motion to disregard the jurys answer to a fact issue Motion for new trial specifically raising the complaint If a MNT is all you bring, a new trial is the most youll get9 10. Superseding and Enforcing the Judgment Methods Bond or cash deposit Written agreement Alternate security as ordered by the court What must be included? Compensatory damages awarded in the judgment Interest for the estimated duration of the appeal Costs awarded in the judgment Practice tip: Travis County District Clerk has a handyform available online (Google travis county supersedeas xls) 10 11. Beware of the Shook/Fairways Split Shook v. Walden (3CA 2010) Attorney fees are not compensatory damages that must be superseded (at least not in breach-of-contract cases) Analysis relied on certain definitions in HB4 Fairways Offshore v. Patterson (1CA 2011) Declined to follow Shook and held that attorney fees are compensatory damages that must be superseded Nothing in plain language of HB4 evidencing intent to change law requiring security of fees or to exclude fees from common meaning of compensatory damages SCOTX has scheduled oral argument in a mandamusexpected to resolve the split (In re Nalle Plastics)11 12. Other Supersedeas Issues Supersedeas caps Post-HB4, amount of security must not exceed 50% of judgment debtors net worth or $25M, whichever is less A judgment debtor who files a net-worth affidavit and complies with TRAP 24.2(c) gets a stay pending a potential contest The rule makes it easier for judgment debtors to appeal Adjustment of supersedeas amount Rules provide for deviation from standard formula upon a showing of substantial economic harm Trial court keeps jurisdiction to adjust amount and type of security Court of appeals can review on motion12 13. Commencement & Perfection of Appeal13 14. Calculating the Deadline to Perfect Appeal Deadline runs from the date the judgment or order issigned (TRAP 26.1, with limited exceptions Deadline varies by type of appeal Regular appeal: 30 days Accelerated appeal: 20 days Restricted appeal: 6 months Cross-appeal: 30 days from judgment or 14 days from 1st NOA (if timely) Motion for extension of time is available (TRAP10.1, TRAP 26.3) 14 15. Know the Steps to Perfect Appeal Notice of Appeal (TRAP 25.1(c)) File in trial court only Special language required for accelerated and restricted appeals Consider if cross-appeal is necessary (vs. cross-issue) Filing fee: $17515 16. Other Initial Steps Docketing Statement Was specific to each courts website, but a new uniform version is now available Download and complete electronically Must file promptly after NOA (TRAP 32; 3rd COA Local Practice 39) E-filing is now mandatory in several courts Redaction rulesconfidential information Include email address with signature Some courts require paper copies; others dont Read the local rules16 17. Other Initial Steps (contd) Request Clerks & Reporters Records Written request, served on all parties Make arrangements to pay Specify contentsbut dont request unnecessary contents Briefing deadline will run from date record is filed 17 18. Advising the Client on Realistic Expectations Two key questions: Should we appeal? If so, which issues should we raise?18 19. Realistic Expectations (contd) Factors to consider: What will the standard of review be? What are our chances of success? What risks will the client face? What will the costs / expenses be? What is the temperament of our potential panel on these issues? What is the anticipated timing? What impact will an appeal have on potential settlement? 19 20. Helpful Resources Office of Court Administration website Statistics for every court in the state Dispositions and average times Reasons for Reversal Breaks statistics down By court and type of case An appellate lawyer! 20 21. And Remember21 22. You Have a VerdictNow What?Guidance on Perfecting and Pursuing a State Civil AppealD. Todd Smith Smith Law Group, P.C.www.appealsplus.com St. Marys University School of Law Alumni CLE Webinar SeriesAugust 9, 2012 22