In July 2013, DAYL’s CLE Committee sponsored a panel discussion highlighting important points in handling appeals. The esteemed panel included Justice Douglas Lang (5th Court of Appeals), Nina Cortell (Haynes and Boone), and Kirsten Castañeda (Locke Lord). The panel was moderated by Amy Lewis (Law Office of Amy A. Lewis).

The panel emphasized that the professional values of civility, honesty, and ethics apply in the appellate setting. These values are embodied in the Texas Disciplinary Rules of Professional Conduct, the Texas Rules of Appellate Procedure, and the aspirational guidance for lawyers in the Texas Lawyer’s Creed. Appellate attorneys are expected to abide by their oral and written agreements, and to have good reasons if they do not agree to reasonable accommodations sought by opposing counsel.

With respect to preserving error in the trial court, getting a ruling on objections was stressed. If a Rule 103 offer of proof is made, just marking the exhibit and proceeding in a question and answer format is not sufficient. The evidence must first be proffered, and then a ruling must be obtained. If such an offer of proof is not made before the jury is charged, the right is waived. Make sure that the court reporter has copies of evidence that was proffered, but not admitted. Importantly, while motions in limine do not preserve error, motions to exclude evidence do.

With regard to appellate brief writing, an attorney should focus on three or less issues, if possible. The entire brief, including the statement of facts, should be written persuasively, but jury argument should be avoided. The panel noted that the brief is critical to a successful appellate practice.

In oral argument, appellate judges have typically already read the brief, and want the attorneys to narrow and focus on key arguments. It is acceptable to stand upon written briefing for the non-key arguments. In preparation for oral argument, know the factual background, the procedural background, the contents of the briefing, the pivotal case law, and recent developments. Practice the oral argument, and anticipate questions. Be candid with the court about the evidence and the legal authority.

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