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.

1. You Have a Verdict—Now What?
Guidance on Perfecting and Pursuing
a State Civil Appeal
D. Todd Smith
Smith Law Group, P.C.
www.appealsplus.com
St. Mary’s University School of Law
Alumni CLE Webinar Series
August 9, 2012
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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 appeal
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3. First Step: Take Off the Trial Goggles
―Dude, my case looks AWESOME with these on.‖
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4. Trial Goggles
―My trial lawyer said that all the hard work has already been done
and we’re TOTALLY going to win the appeal.‖
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5. Estimating Appellate Attorney Fees
• Start thinking about this long before trial
• Be sure and designate an expert to testify about
appellate fees and prove them up at trial
• Don’t count on a ―copy and paste‖ job
– Most appeals are decided on briefs, so it’s 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
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6. Estimating Appellate Attorney Fees (cont’d)
• 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 opponent’s brief, etc.
– Texas Supreme Court proceedings, if any
– Post-appeal activity
• Even if you don’t get everything you ask for, the exercise
is useful in conditioning the client
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7. Crafting a Proposed Judgment
• Should you file a motion for judgment?
– If you lost, and you’re 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 awarded—consider detailed breakdown
– Pre-and post-judgment interest—a (boring) CLE talk unto itself
– Costs
– Language of finality and execution
– Date and signature line for judge
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8. Post-Verdict Error Preservation
• Most errors are preserved during trial, but be aware of
rules for post-verdict preservation
• In jury cases, must file a MNT within 30 days of judgment
to 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 on
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9. Post-Verdict Error Preservation (cont’d)
• In jury cases, preserve legal sufficiency challenges by
one of the following:
– Motion for directed verdict
– Motion for JNOV
– Charge objection
– Motion to disregard the jury’s 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 you’ll get
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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 handy
form available online (Google ―travis county supersedeas xls‖)
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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 mandamus
expected to resolve the split (In re Nalle Plastics)
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12. Other Supersedeas Issues
• Supersedeas caps
– Post-HB4, amount of security must not exceed 50% of judgment
debtor’s 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 motion
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13. Commencement & Perfection of Appeal
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14. Calculating the Deadline to Perfect Appeal
• Deadline runs from the date the judgment or order is
signed (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 (TRAP
10.1, TRAP 26.3)
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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: $175
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16. Other Initial Steps
• Docketing Statement
– Was specific to each court’s 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 rules—confidential information
– Include email address with signature
– Some courts require paper copies; others don’t
– Read the local rules
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17. Other Initial Steps (cont’d)
• Request Clerk’s & Reporter’s Records
– Written request, served on all parties
– Make arrangements to pay
– Specify contents—but don’t request unnecessary contents
– Briefing deadline will run from date record is filed
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18. Advising the Client on Realistic Expectations
• Two key questions:
– Should we appeal?
– If so, which issues should we raise?
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19. Realistic Expectations (cont’d)
• 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?
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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!
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21. And Remember…
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22. You Have a Verdict—Now What?
Guidance on Perfecting and Pursuing
a State Civil Appeal
D. Todd Smith
Smith Law Group, P.C.
www.appealsplus.com
St. Mary’s University School of Law
Alumni CLE Webinar Series
August 9, 2012
22