As every lawyer knows, solid arguments are built on a combination of precedent and history—either urging the court to follow what it or other courts have done in the past, or to avoid prior decisions through distinction in the present application or context. Thus, in asking a court to engage in constitutional or statutory interpretation, what role does the “history and tradition” of the underlying text play in the analysis?
Continue Reading Is history the best teacher?
“As Justice Scalia memorably said, Article III requires a plaintiff to first answer a basic question: ‘What’s it to you?’” Food & Drug Admin. v. All. For Hippocratic Med., 602 U.S. 367, 379 (2024) (quoting A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881, 882 (1983)). In this summer’s roll out of United States Supreme Court decisions, many controversial cases have been highly anticipated, including that of Food and Drug Administration v. Alliance for Hippocratic Medicine.
Continue Reading What’s it to you?
Continue Reading Texas Standards for Appellate Conduct?The appellate lawyer’s role
After even a few years of practice, most attorneys have experienced that case that really should only reach a trial after a preliminary legal issue is decided. It just seems that the expense and time for trial is wasteful if ultimately, the controlling issue on appeal is the preliminary question before ever touching on the factual dispute. But Texas attorneys have been perplexed and frustrated when a court of appeals simply denies hearing that very case through a permissive interlocutory appeal.
Continue Reading Mother May I?
Recently, the Supreme Court of Texas released the final version for amendments to the Texas Rules of Appellate Procedure, namely Rule 53.2-.3, which provides the required contents of a petition for review and response to a petition for review. The Court added a new mandatory requirement that parties must include an introduction section.
Continue Reading The K.I.S.S. Method?
There’s a certain excitement as a trial lawyer when your witness is on the stand, effectively using an exhibit to lay out your case. You can see the jury leaning in, the judge looking over, and know that they are fully engaged.
The problem is that the courtroom magic doesn’t always translate into a cold appellate record. Take this example, where a plaintiff explained to the jury where a particular incident happened in a boundary dispute:
Continue Reading Don’t be the case with a broken record.
Findings of fact and conclusions of law (“FFCL”) play a crucial role in error preservation following a bench trial. This post addresses some of the procedural snares and substantive traps that continue to catch skilled attorneys.
Continue Reading Avoiding Snares and Pitfalls in Findings of Fact and Conclusions of Law