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Let’s talk about appellate practice. If you are lucky enough to end up in an appellate tribunal, here are a few things to consider. 1. Remember to sign up on the various courts’ Web sites for “case mail” updates. Like the 5th U.S. Circuit Court of Appeals, the Texas Supreme Court and each of the Texas courts of appeals have Web sites. Lawyers can link to these sites at www.courts.state.tx.us/appcourt.asp. On each court’s site, lawyers can sign up to receive e-mail updates that say when any action has been take on a case. For example, if the court rules on your case on a Thursday, you will typically receive an e-mail that same day saying that the court issued an opinion. The e-mail includes a link that will eventually take you to the actual opinion. 2. Think twice before using demonstrative aids in oral argument. Appellate court judges almost unanimously agree that demonstrative aids in oral argument rarely work. Typically, the easel is too far from the justices for them to be able to see or read the board. But if there’s a strong need to use demonstrative aids, make sure the print is large and the chart is simple. In addition, bring several copies on letter-sized paper. Before the argument, give the copies to the bailiff or the clerk and ask that they be placed on the bench for the justices to see in case they are not able to read the board. 3. Try not to split the argument between counsel. Many lawyers like to split their argument between two different attorneys, especially if they have two distinct issues at hand or there is more than one party on that side of the case. Most appellate court justices, however, discourage attorneys from splitting argument. As one justice put it at a CLE seminar a few years ago, “It never works.” It is hard to transition from one attorney to the other, the flow of the argument is destroyed and it can be awkward when a justice insists that you address the issue your colleague was supposed to deal with during his or her portion of the argument. 4. Find out beforehand whether your court uses a docket call system for oral argument. Like trial court hearings, some appellate arguments are set for a specific time and others are set on a docket call system. If the court you are appearing in is on a docket call system, the court will instruct you, along with the attorneys in two other cases, to all appear at the same time for docket call. But even in those courts that use a docket call system, a pre-assigned order usually will be established for the arguments. Call the clerk’s office the day before your argument to find out if you are set first, second or third. But even if your case is not set first, you should still show up at the assigned time to announce “ready.” 5. Watch an argument before preparing and delivering your argument. Each courtroom is set up differently, and each court operates its own way. Pay attention to the details. For instance, if you keep notes in a binder, find out in advance whether it will fit on the lectern. If it doesn’t, you might end up wrestling with the binder rather than focusing on the task at hand. Also, pay attention to how time is kept. Some courts provide a timer on the lectern; some do not. In courts where there is no timer on the lectern, the presiding judge probably will keep time, but unless you have a watch, you won’t have any idea how much time is left until the justice gives the five-minute warning. By watching others beforehand, you will be better prepared, the argument will go more smoothly and you’ll be more comfortable in the surroundings. 6. During oral argument, don’t forget the staff attorneys. Not only will the justices listen to the argument, but there likely also will be staff attorneys in the room. Focus on the justices, but since staff attorneys probably will assist the justices in writing the opinion, consider making eye contact with them as well during argument. 7. Check the local rules for special filing requirements. As with the trial courts, many of the courts of appeals have local rules. Be familiar with them before filing anything. For example, check to see whether the court requires a particular color for the cover of the brief. In this regard, remember that the Texas Rules of Appellate Procedure provide that a brief’s cover should not be red, black, dark blue or plastic because the clerk’s “received” stamp will not show up. Another difference between the trial courts and the appellate courts is that a certificate of service for an appellate filing must identify the name and addresses of the lawyer being served and the party that lawyer represents. Dionne Carney Rainey is an associate with Jenkens & Gilchrist in Dallas. After completing a clerkship in the U.S. District Court for the Eastern District of Louisiana, Rainey came to Jenkens, where she has been practicing law for the past five years. Rainey focuses her practice mainly on commercial litigation and media law matters. Rainey wishes to thank Jenkens & Gilchrist shareholder Robert B. Gilbreath for his assistance with her article.

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