Texas Appellate Watch

Happy Grammar Day - Tips for Proofreading

Because today is Mardi Gras, National Pancake Day, primary election day in Texas, and the date that Sam Houston was named commander-in-chief of the armed forces of the newly independent Republic of Texas, you may not realize that it is also National Grammar Day. But just like last year, I'm here for you.

I'd love to say I've never filed a brief with a typo, but I know that's not true. In fact, I hate reading my briefs after they're filed, because I know I'll find something that I should have caught on the final proofread. But there are a few proofreading techniques that can minimize the chances of missing some glaring error.

Here are some that I use:

• Know your own tendencies and check for them. For example, I know that I frequently type "plaintiff's" when I mean "plaintiffs." So, I use the search function to look at all instances of "plaintiff's" or "plaintiffs'" to be sure that I really want it to be possessive, rather than plural.
• Have a good reference book handy, just in case. I like "Garner's Modern American Usage."
• Actually use the spell-checker in Word. It is easy to think that you have looked at all of the words that Word has underlined in red and that you know that they are not really misspellings. But running through the spell-check will usually find at least one word that is misspelled.
• But don't rely exclusively on the spell-checker. You don't want to file a brief that uses "tortuous" instead of "tortious," "arbitral" instead of "arbitrable," "of coarse" instead of "of course," or worse. 
• Read it out loud. It is amazing what you find when you actually have to read the word out loud instead of just assuming you know what it is.
• Proofread the document backward, starting at the last sentence. Some mistakes are easier to find when they are viewed out of context from the rest of the brief.
• Find someone else to proofread it, preferably someone who has not read it before. By the time I'm ready to file a brief, I know it so well that I see what I think is on the page, instead of what is actually there. A second set of eyes can catch things that I miss.

What proofreading techniques do you use? In celebration of grammar day, let's get a good list going in the comments.

-- Rich Phillips, Thompson & Knight

The Great Footnote Debate (A Response to Bryan Garner)

Bryan Garner has just published a new column in which he reiterates his suggestion that legal writers should remove all citations from the text and put them in footnotes.  I've written before on why I think textual citations are still the way to go (here and here). It seems to me that Bryan's most recent column ignores several realities that counsel against using footnotes.

First, the advice seems to ignore perhaps the most important piece of legal writing advice: remember your audience. Note that both of the people that Bryan "argues" with in his column are sitting judges. Both of them are opposed to his suggestion, and they are not alone. Chief Justice Roberts and Justice Thomas have both said that they prefer citations in the text. (John G. Roberts, Jr., Interview Transcript, 13 The Scribes Journal of Legal Writing 5, 39 (2010); Clarence Thomas, Interview Transcript, 13 The Scribes Journal of Legal Writing 99, 121 (2010).) 

Moreover, a 2009 survey of Texas appellate judges showed that 83.2% believe that footnotes should be used sparingly or avoided altogether, while only 20.7% said they were appropriate for case citations. (Access the whole survey here.) If the judges are saying they'd prefer the citations in the text, then legal writers should put them in the text. Otherwise, we risk annoying the only audience that matters.

Second, Bryan seems to forget that the material in the citation is just as much a part of the argument as the statement of the law drawn from the source. When I was a law clerk, footnotes drove me crazy because I always had to check the bottom of the page to find out which court issued the opinion on which the party relied (and when). It makes a difference to the strength of the argument if the case is a recent one from a controlling court (e.g., a case last year from the Texas Supreme Court) or a very old case from an intermediate court or a court from another jurisdiction entirely. Bryan's solution is to build the court and date into the sentence. But trying to do that every time you cite a case makes the text more stilted and formulaic (and thus, less readable) than if the information was just included in a textual citation.

Third, Bryan makes no allowance for how briefs are being read. More and more judges are reading briefs on iPads or other tablets. And I can say from experience that footnotes are even more annoying on a tablet than they are on paper. I use a tablet almost exclusively to analyze and mark up my opponents' briefs. And I quickly tire of scrolling down to see the footnote and then scrolling back up to the text. It is impossible as a writer to know or control how the reader will zoom in or be looking at the document on a screen. And I think in that case, it is imperative to make the reader's job as easy as possible by keeping the citations near the arguments they support.

Fourth, while Bryan says that readers have a hard time with citations in the text, he again ignores the only audience that matters. The judges who disagree with Bryan say that they don't find the citations distracting. Therefore, Bryan's suggestion seems to be a solution in search of a problem.

Fifth, the fact that some judges put citations in footnotes for their opinions does not mean that lawyers should do the same thing. Judges have a different audience than lawyers. And as long as a substantial part of my audience says it prefers citations in the text, that's where I will put them.

I know that our readers have a variety of views on this topic. So, please, let me have it in the comments.

- Rich Phillips, Thompson & Knight

Preservation Best Practices: Object to Capacity Issues in Affidavits

Error preservation with respect to affidavits has, over the years, become something of a sticky wicket in Texas. Appellate courts agree that defects in the form of an affidavit must be raised in the trial court and ruled on to preserve error and that defects in the substance of an affidavit can be raised for the first time on appeal. The difficulty arises when trying to determine whether a particular defect is one of form or one of substance.

Last week, the Fourteenth Court of Appeals issued an opinion in a case that the court, on its own motion, considered en banc for the express purpose of deciding whether error related to an affidavit had been properly preserved. The opinion is Washington DC Party Shuttle, LLC v. IGuide Tours, LLC, No. 14-12-00303-CV, 2013 WL 3226768 (Tex. App.—Houston [14th Dist.] June 27, 2013, no pet. h.). The court held that an objection that an affidavit fails to show that the witness has personal knowledge is a defect in form that must be raised in the trial court or waived. 

Last year, the Supreme Court decided in The Mansions in the Forest L.P. v. Montgomery County, 365 S.W.3d 314 (Tex. 2012) (per curiam) that the absence of a jurat is a defect of form that must be raised in the trial court or it is waived. A key part of the Supreme Court's analysis is that the lack of the jurat could be cured if the defect was pointed out. We wrote about the decision here. Scott Stolley and I have also predicted that the rationale in the case could lead to more defects being held to be defects of form on the basis that they are correctable.

In Washington DC Party Shuttle, LLC, the en banc Fourteenth Court of Appeals first noted that there is a split among the courts of appeals (and even within the Fourteenth Court, which is why the court took the case en banc). The Second, Fourth, Fifth, Sixth, Seventh, Tenth, and Eleventh courts had all held that an objection to lack of personal knowledge had to be raised in the trial court or it would be waived. The Third and the Eighth courts, while acknowledging contrary views, held that it was a substantive objection that could be waived at any time.

The en banc court relied on two key arguments to decide that the defect is one of form. First, the court pointed to the Texas Supreme Court's decision in Grand Prairie Independent School District v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990). There, the Supreme Court had held that the failure to demonstrate personal knowledge was a defect in form. Although the Supreme Court has not been consistent since Vaughan, it has never been overruled.

Second, the en banc court noted that requiring an objection is consistent with the overall policies of error preservation that the trial court should be given the first opportunity to correct errors before appeal and that a litigant should not be able to surprise his opponent on appeal. These policy reasons are similar to those that underlie the Supreme Court's decision in The Mansions in the Forest. Therefore, Washington DC Party Shuttle is likely just the next in what may be a long line of cases holding that a particular defect is one of form that must be raised or waived.

In short, when in doubt, go ahead and object, particularly when your opponent could correct the defect if it were to be pointed out. It is increasingly likely that such defects will be held to be defects of form that may be waived.

-- Rich Phillips, Thompson & Knight

Preservation Best Practices: Successful Running Objections

Reader John Bickel suggests that a running objection, when properly used, can be a very useful preservation tool. A running objection can keep appellate strategy from interfering with trial strategy. You can preserve the error without looking like a jack-in-the-box popping out of your chair to object after every question.

There are four steps to a successful running objection:

1. Get an adverse ruling from the court. This may seem obvious, but no error is preserved without an adverse ruling.
2. Get an express ruling from the court granting a running objection. Again, this may seem obvious, but many litigants have gotten themselves in trouble by having to argue that they had an implied running objection. E.g., Denbury Green Pipeline-Texas, LLC v. Star-L Land Co., No. 09-10-00475-CV, 2012 WL 585105 at *4 (Tex. App.—Beaumont 2012, no pet.). Don't risk it; get an express ruling.
3. Be specific. As John points out, a successful running objection will precisely identify both the objectionable evidence and every basis of the objection.
4. Renew the objection with each new witness that may present the objectionable evidence. Failure to expressly renew the objection will waive error. E.g., City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App.—Fort Worth 1988, writ denied).

Be sure that running objections are part of your preservation toolkit, and follow these steps to ensure that they successfully preserve error.

[This is part of a series of occasional posts in which I will highlight suggested best practices for preserving error. If you have any practices that you use and would like to share with others, please let me know, and I will be happy to pass them along (with appropriate attribution, of course).]

-- Rich Phillips, Thompson & Knight

Preservation Best Practices: Tell the Appellate Court Where You Preserved Error

Preserving error at trial is worthless if the appellate court doesn't know that you did it. Don't make the court search for it. Instead, appellants should do everything possible to make it easy for the appellate court to see where error was preserved. In this post, I'll give you an example that should make you nervous and then suggest a practice that should eliminate the potential problem.

First, I need to scare you. Let's suppose you are an appellant complaining about the exclusion of evidence. In your brief you point the appellate court to the portion of the record that includes your offer of proof and you quote the trial judge's statement that "I didn't allow it during your case in chief, and my ruling stands." You might think this is sufficient to show the court that you preserved error. After all you have the offer of proof and a ruling from the judge refusing to permit the evidence to be presented to the jury.

According to the Dallas Court of Appeals, you would be wrong. The court also wants to know where the evidence was offered during the case in chief, where the objection was made, and where the initial ruling was. And because your brief doesn't point to that portion of the record, the court of appeals is not going to look for it on its own. Therefore, you have waived error. See Keyes Helium Co. v. Regency Gas Services, L.P., 393 S.W.3d 858, 861-62 (Tex. App.–Dallas 2012, no pet.).

So, how do you avoid this nightmare scenario? As I noted above, make it easy for the court to see where you preserved error. When I represent an appellant, I drop a footnote at the end of each of my issue statements that says: "This issue was preserved in the trial court by ________." I then fill in the methods of preservation and provide citations to the record. This simple practice makes it easy for the court to see where I preserved error without interrupting the flow of my issue statements or my argument.

[This is the first in a series of occasional posts in which I will highlight suggested best practices for preserving error. If you have any practices that you use and would like to share with others, please let me know, and I will be happy to pass them along (with appropriate attribution, of course).]

Rich Phillips, Thompson & Knight