For more than a century, oil and gas has remained the backbone of Texas’s economic growth. Despite repeated rumors that oil and gas is on the way out as an energy source, the industry continues to adapt and grow to meet new economic and technological developments. As a result, disputes over oil and gas remain an important part of Texas jurisprudence, something that today’s guest, Wesley Lloyd of Freeman Mills, PC, follows closely. Wesley’s practice focuses on litigation and appeals in energy, water, and real estate matters. Having handled both trials and appeals in oil-and-gas cases, Wesley explains the value in learning about how energy law impacts Texas practice. He also offers his personal story about taking a unique route to finding his current practice setting and the mentors that helped him along the way. Wesley also shares thoughts on remote work and adapting a practice to new technological realities.

Listen to the podcast here:

Handling Oil & Gas Issues in Trial and Appellate Courts | Wesley Lloyd

Our guest is Wesley Lloyd from Fort Worth. He is with the firm of Freeman Mills. Wesley, welcome to the show.

Thanks for having me. I’m a fan.

Thank you.

We appreciate it. We’re glad you’re here.

Tell our guests a little bit about yourself, your practice and where you come from.

I’m originally from a small town in West Texas and mainly grew up in Austin. I went to A&M for undergrad and Tech for law school. Through a circuitous meandering route, I ended up practicing oil and gas primarily. Now, it’s even more limited than that, in litigation and appeals both trial work and appeals. I try to focus on that and provide value to clients in that industry. My office is in Fort Worth but I work remotely almost 95% of the time. I split time between Central Texas and West Texas.

Were you doing that before the pandemic or is that a recent development?

I was remote before it was cool and before COVID-19 made it necessary. For the past number of years, I’ve been working remotely and enjoyed it. It has pros and cons but overall, I like it a lot.

How did you find your way to an oil and gas practice? Did you know that’s what you wanted to do coming out of law school?

No, not at all. It’s a meandering road and a series of fortuitous events or coincidences. As an undergrad, I took a class in 1999 or 2000. I’m looking to go to law school. All of us, what we’re thinking about back then was trying to figure out how to get our GPA up to get in where we want and get a scholarship. Back then, we had a website called Pick A Prof and it was a new thing. I looked and there was a class on oil and gas law for undergrads which was interesting. I don’t think it’s even taught anymore but the grades in that class were not good. They gave like one A each semester. I said, “I’m not going to take that.” Even though I was interested in it, I need to get my GPA up for law school. It ended up being a good fit and I needed to take it in that slot.

I worked full time in undergrad and put myself through. I didn’t have as much flexibility on when I would schedule classes. It ended up being a great fit. I loved it and I loved the professor. I’ve kept in touch with him ever since but throughout my story, mentoring is a big part of my story. There’s a lot of great people who have given their time to me in the past. If I’m anything, I wouldn’t be that without those people. I took it and loved it. I ended up getting an A in that class that semester. It was one of those situations where I’m glad I took the risk. I went on to law school and I wanted to do water law, and then maybe environmental. That was what I focused on all through law school. I had no plans to practice oil and gas.

I remember distinctly a conversation when I was sitting at my grandmother’s house. She had a friend over who asked me what kind of law I was going to practice. My grandmother answered for me and she said oil and gas law. I looked at her like she was crazy and it turns out she was right, but she was lucky more than anything.

When I got out of law school I went to a big-ish law firm and was doing environmental and water. There became a need for an associate to help with oil and gas stuff as the Barnett Shale was active, and natural gas prices were very high and active. I got started doing that as survival as a young associate at the firm. The senior partner comes to you and says, “We need you to bone up on this stuff and help.” I had another mentor at that firm who was board certified in oil and gas. He wrote and graded the bar exam. He’s on the board of law examiners. He did the bar exam question on oil and gas. He was a great mentor to me too.

Gradually over time, it became a bigger share of my practice. I started to enjoy it and litigating some oil and gas disputes. Eventually, it became over half of my practice at that point. I decided to get board certified in it and somehow passed the exam. Ever since then, that’s what I’ve been doing. I eventually got away from the transactional work because I realized I was better at litigation and appeals because I enjoyed those more. Now I represent oil companies, some surface owners and royalty owners, but mostly defending oil and gas companies though.

I’m trying to imagine how different that must be today versus how it was 100-plus years ago, and a lot of these deeds that you learn about if you take oil and gas in law school. I did take it in law school and enjoyed it but they weren’t the model of clarity. Has there been a push in the transactional side of oil and gas to clean up how the transactions are done and try to make things clearer?

I feel bad for the transactional guys and girls. Everybody thinks that litigation is more stressful than transactional work and I didn’t find that to be the case at all. In litigation, at least I know what your argument is now. In transactions, I’m trying to imagine what the arguments are going to be later. Those things are what kept me up at night. Believe it or not, I find litigation to be a lot less stressful. Our Supreme Court takes a lot of oil and gas cases. They realize appropriately and accurately that other states look to the Texas Supreme Court for guidance on oil and gas issues. The Supreme Court takes that responsibility seriously. It’s apparent based on what they take and what they write on, and with just the number of cases it’s obvious. I also know that from talking to different Supreme Court Justices about how seriously they take that because it’s like they are the Supreme Court of the United States when it comes to oil and gas law in a way.

oil field

Oil In Appellate Courts: The industry is changing. The law changes a little bit over time, and that makes it important to stay up to speed and keep on your toes.

It’s a very important industry in our state and I know it’s changing to some degree. We had a push for alternative energy and I suppose that’s always going to be the case. There’s going to be other new energy sources coming up. Texas is an oil-rich state and you mentioned the Barnett Shale, there have been some major oil and gas developments coming out of those large formations for a long time. It’s hard to imagine that changing anytime real soon. The industry is changing, what are some of the issues that oil and gas lawyers are seeing at the forefront in these times?

The industry is changing. The law also changes a little bit over time and that makes it important to stay up to speed and keep on your toes. I’ve signed up to do the case law update for the general practice section on oil and gas law to force myself to stay up to speed on those new cases. The industry, every time there’s a new party in office in DC and a new president that has some impact regulatory-wise. A little bit on Texas, but most of Texas being private property, the feds are not going to be able to regulate what’s happening on private property so much unless it comes to air emissions and things like that. That’s an interesting aspect. Even though I could and I have in the past done some of that, I don’t do much of that at all right now. There is regulatory pressure. There’s politics involved, which are interesting to me and I like to follow. That all makes it an interesting area to work in. Did you ask about trends in litigation going forward?

Not so much specifically trends in litigation. I’m just thinking about the industry from a broader perspective. We see a lot more alternative fuels. You can’t drive through parts of West Texas without seeing the giant wind turbines. I’ve seen these in other states. I’m wondering what are we seeing in terms of how the industry is responding to those alternative energy sources?

There are some common misconceptions out there and for any young lawyers or law students who read this, there are two pretty common misconceptions. One goes to the heart of your question. That is that the oil and gas industry is going to go away. There won’t be a demand for oil and gas lawyers in the future. As students or young lawyers are planning their careers, that they may want to stay away from oil and gas. I don’t subscribe to that theory at all. I disagree with it completely because the efficiency of oil and gas for energy generation is not going to be something that’s easily replaced.

I’m a proponent of having wind power, solar and even nuclear. Maybe in my mind as a practical matter, if you wanted to replace oil and gas that’s the way you would go. People don’t realize this but 1 gallon of gas kicks out enough energy. Bundled in that gallon is enough energy to recharge your iPhone every day for the next twenty years. It’s equivalent to 1.5 gallons of ethanol, 1.5 LNG, and 33.4 kilowatt-hours of electricity. That’s a power-packed, efficient energy source. I don’t think you can replace that.

If you think about when you get in your car and head down to I-10, and the speed limits are 85 now out West of San Antonio, a gallon of gas weighs about 6 pounds. If you think about burning that in your engine and hurdling a 5,000-pound vehicle at 85 miles an hour, it’s amazing. That gallon is going to carry you 20-25 miles if you are energy efficient with all the way things go, and if you’re in a smaller vehicle.

My point is that’s not easy to replace. Electric is good and getting better but I don’t see the demand for oil and gas going away. When people, deans or law professors are saying that it’s not important to learn to try cases because trials are going away. Trials are going away but the fact is if you don’t know how to try a case, and the other side doesn’t know you’re willing to go try a case, and that you can and will win or preserve on appeal or whatever, that impacts your settlement. The fact that settlement is more common makes it more important that the leverage you have in the settlement is going to trial. Those are the two misconceptions. I don’t see oil and gas going away and I don’t agree with the premise that lawyers shouldn’t learn to try a case.

Take us through what an oil and gas case looks like from the beginning. Some of the time, what we’re talking about is disputes over royalties. What other disputes can come up as an oil and gas litigator?

There’s a ton. It’s got its own broad topic of oil and gas litigation but there are a ton of niche specialties within that itself too. In the past, I litigated and I had a lot of experience with surface disputes where minerals had been severed and the surface owner doesn’t own any minerals. They don’t like having an oil and gas company come and drill a well, put a road and a power line in, or whatever the case may be. That spills over onto bigger commercial operations like solar farms. The conflict between a solar farm and an oil and gas operator who’s got the minerals lease, sand and gravel operations, and water reservoirs. Things that consume a large surface area.

In Texas policies, the minerals are the dominant estate and it doesn’t mean that it’s superior. If push comes to shove, the oil and gas operators are going to have the right to go drill a well because otherwise, the minerals wouldn’t be worth anything. Those conflicts are one subset that I’ve done a lot of work in. Royalty disputes are always going to be an issue and that gets into what does the lease say? The lease is not clear on that. What’s the common law? What does the Supreme Court say about it? There are lawyers out there who do those cases, and then you get into fiduciary duty stuff and joint operating agreements.

The industry is capital intensive and it requires so much money. It necessitates the need for partnerships to go complete projects. Anytime you’ve got that, you got potential disputes. Factor in prices, as prices go down and revenues shrink, you’ve got service companies that have been working on things that find it hard to get paid. There are collections issues. There’s a whole separate section of the property code that deals with mineral liens as opposed to contractors and mechanic’s liens. All of those things. People who like securities ought to pay attention to the oil and gas industry. Financing, the transactional stuff is mesmerizing in that area a lot.

person holding stack of paperclipped papers

Oil In Appellate Courts: If you’re in a court where a judge does not have experience with oil and gas, take a different approach and try to break it down into more common terms.

There are a lot of little subsets within what you would term oil and gas litigation. You’re right, traditionally, you’re going to think of royalty disputes. You mentioned that the drafting had changed over time and the old documents. That’s a big source of litigation right now because the deeds signed back in the early 1900s say things that are not clear. There’s a Supreme Court case a little while back that unintentionally created even more litigation on that because you got to go case-by-case by the deed. Those disputes are the most common but they’re all interesting. They are also a thing that somebody could specialize in if they wanted to.

One thing that comes into my mind in oil and gas litigation is it’s almost like you’re speaking another language. If you have a trial judge or jurors that maybe are not oil and gas familiar, how do you explain some of these arcane languages and concepts in a way that gets across to judges and jurors that are not at all familiar with this whole world of vocabulary?

I had a case over seismic data and I’ve had a learning curve in that. One thing I like about oil and gas litigation is it’s fascinating the technology and the R&D that goes in. There are maybe other industries that do more R&D and engineering technology to develop more like maybe Silicon Valley. The people who are active in this industry do amazing things. That’s one thing I enjoy learning about it as you go forward. As I learn, I have to figure out how to convey this completely foreign language of what a seismic acquisition does and how it works. Lay people will be shocked to know that’s even possible.

A petroleum engineer can take a drill bit the size of a lunchbox and put it in the bed of a pickup truck, 4 miles away underground. It’s amazing. How do they do that? The money aspect or the way that these deals are structured, or what you’re trading off, I try to break it down in ways for summary judgment cases that the judge and a landowner would understand. Put it on a city lot, instead of a 70,000-acre ranch at issue, put it on a 7/10 of an acre residential lot and say, “If your neighbor wanted to put an electric line across the middle of your property. What concerns would you have?”

To answer that question, it depends on what we’re talking about and where you’re at. Venue for oil and gas is usually in places that are active in oil and gas. On the jury, we’re going to get people who are familiar with it, people who work in the industry, and people who realize the importance of it. Sometimes we get into federal court, especially, and you’ll be removed from that local. You don’t have that intensity of experience on the jury and the judges may not.

There are certain counties in West Texas especially right now where the district court judge is a bona fide expert on oil and gas. Those cases go to the Eastland Court of Appeals. Usually, Eastland decides an incredible number of oil and gas cases and becomes pretty reliable on what they say on that. El Paso also does to an extent but not as much as Eastland, and then the attention that the Supreme Court pays too. If I’m in a court where the judge does not have experience with oil and gas, we take a different approach and try to break it down into more common terms. We talk about hiring a plumbing contractor instead of hiring a water hauler.

It goes down to the basic terminology. It sounds like you’re having to adjust sometimes depending on where you are. I know that we have a special volume of the pattern jury charges that is focused on oil and gas. Before you gave that explanation about how you go about presenting an oil and gas case to a court or even a jury, that makes perfect sense that your jury pools would be different. Maybe more sophisticated than the general population in terms of the industry if you’re in an area where that’s a large part of what people do. I don’t know a thing about the oil and gas volume of the PJC. Do you find those helpful when you’re preparing a case for trial? Do they adjust for that sort of common language or do you have to go around some of the terminologies in the PJCs?

I don’t think that the PJCs you’re talking about are officially sanctioned State Bar PJCs yet. The oil and gas section of the State Bar developed those. They may be now. I may be mistaken about that.

They are. There is a book now that’s oil and gas. I’m sure it was developed with input from members, if not the actual organization, of the oil and gas section of the State Bar of Texas.

That would be a recent development for them to be official State Bar pattern jury charges because years ago, the section did those in an unofficial capacity as a service to the membership of that section of the State Bar for a long time. They were very good by experts and legends of oil and gas law in Texas that took it seriously and did a good job on them. They do deal in different terms. They do cite to cases that are oil and gas exclusively, and then you got to bring in normal or the more broad common stuff that everybody knows about with contract issues, injunctive relief, trespass claim, cause of action, and things that are more common. I’m glad to know it’s official now. I haven’t needed to find any new ones recently. I guess I got to pay for that now. I’m sure the firm knows that. I’m joking.

You try cases as a trial lawyer in this practice area but you handle appeals as well. Is that right?

That’s right. I try to be vertically integrated, but not a jack of all trades because I do believe that means you’re the master of none. I believe it is important for a trial lawyer to understand the appellate on what’s going to happen on appeal and how to be sure that it’s all preserved. The best way to do that is to do some appeals. There’s a role and value in a dedicated appellate specialist. I 100% agree with that.

In my practice, I don’t handle all the appeals. I will send those out to specialists. I take appeals of cases I didn’t try, but I like to handle them to keep myself well rounded and I enjoy it. That’s not a proper motivating factor a lot of times for a lawyer to do stuff they like. They need to provide value to the clients and be sure of the stuff that they’re good at.

If I feel like it’s a case where either I don’t have familiarity with the court that it’s going to, or it’s an important innovation for the client that we need a Supreme Court specialist who sees those judges at dinner and understand all that, I’ll send those out. I try to stay involved where I can and it’s appropriate for the client.

It seems like more in oil and gas cases than any other, that it’s potentially ripe for amicus support because there are so many little ripples in the industry that you may not foresee from a particular provision in the lease. I feel like we see them a lot more in oil and gas cases than in other places. Is that just me imagining that or is that right?

You would be a better judge of whether or not it is more common in these appeals. These appeals are the only ones I’m looking at, but it is common. The trade associations pay careful attention. There are certain royalty owner groups that pay close attention. There are surface donor groups, hunting and branching groups and things like that. They pay close attention to these issues and will weigh in, Farm Bureau to the cattle raisers. To anybody reading who’s paying attention, all of that means there are political consequences involved. They are active in lobbying, fundraising and all that.

Yes, the amicus work is common and important. I would like to visit with a Supreme Court Justice off the record sometimes about how much do you pay attention to who’s weighing in or what they’re saying, and things like that. They’re doing it. I don’t think they’re going to give undue weight to it. Amicus industry associations and stakeholder groups that weigh in have a perspective that may not have been considered by the specific parties or the impact beyond this specific case.

I’ve done amicus work and I’ve enjoyed it immensely because it allows a lawyer to step back and think about the policy, which I’m a policy thinker. It’s a good fit for me, but also get the industry perspective and weigh in and say, “You may not be thinking about it. Here’s why it has to go this way.” There’s a lot of potential for young lawyers to get experience there if they wanted to by offering maybe to do it for free a time or two. Do good work in the job that you’re doing and maybe it’ll lead to something else later because it’s important in the oil and gas industry.

For people that want to get into oil and gas work, do you have any tips on ways that a young lawyer can make contacts in the industry or industry groups and find their path in that way?

person reading a book, wearing glasses

Oil In Appellate Courts: Read the rules of appellate law very carefully. They call them traps for two reasons. One is it’s an acronym, and the other is that it’s an analogy.

It may take them out of their comfort zone but call people, send them an email, figure out who does what and where, and be a good fit. Find a common connection if you’re an undergrad, fraternity law school, something to latch onto to meet that person. Generally, people are hesitant to do that because they think you’re going to take up people’s time and people don’t want to hassle with it. Certainly, that’s a legitimate concern. I don’t mean to de-legitimize that, but they would be surprised how often people are willing to help and talk about their experience. It’s a compliment to people to be asked.

What I would tell anybody who is wanting to do it is don’t be afraid to go ask for help. You may get a helpful response from 1 out of 3. That’s probably what I would suspect. That’s a pretty good hit rate. Go about it that way. That’s not even specific to the oil and gas industry though. That’s just general advice. I don’t think there’s anything I would say that changes the general rule.

A lot of oil and gas practice litigation anyway ends up being in smaller towns in West Texas, East Texas and South Texas. If someone wanted to do that, they could relocate to those places. It’s not necessary but it’s helpful to be there sometimes. It depends on what you want to do. If you want to represent the landowners and the mineral owners, you might want to be there. If you want to represent the companies and all that, you may want to be in the city where those companies are located and build those relationships.

I would also suggest they attend the CLE conferences. This is the same as if you wanted to go into administrative law, water, construction or real estate. Go meet the people who are there, do the networking thing, talk to the speakers and keep in touch with people. There’s a lot of good trade associations in the oil and gas industry, a lot of good CLE opportunities, and professional advancement organizations. You could be a member of twenty different ones. It’s not too much to do all of them, but there is ample opportunity out there for someone to grow their network and eventually grow a client base that sustains that practice.

I looked online as we were talking here and I see that Texas Bar CLE has offered in the past a Handling Your First (or Next) Oil and Gas Case program. We’ve talked about those base-level programs on the show here. It sounds like that one might have been a good one to check out. The program is still available at least online. I wanted to ask though, we talk on the show all the time about how the appellate bar is pretty tight-knit. Even on a statewide basis, we all tend to know each other. We see each other in cases over and over again. Is that the case with the oil and gas bar? Do you see the same people over and over? Is it a collegial group like we are?

It is very collegial in my experience. You don’t want to burn a bridge. I tell people all the time that when I got board certified in oil and gas, you had to have ten references. They can’t be in your law firm and they have to be licensed in Texas. My biggest client at the time, all the in-house lawyers were located in Oklahoma. They weren’t licensed in Texas. I had one in-house lawyer who is licensed in Texas who I could use as a reference. The other nine were people I had litigated against. I am pleased to say they all agreed and were references for me. That’s a credit to them probably more than me. It’s mostly collegial. You’re always going to run into situations where someone’s being more zealous than they have to be. They’re taking positions they don’t have to take or do things you don’t like, but remaining collegial is very important to me.

As far as running across the same lawyers, that does happen. The same firms and all that and you get to know people, but I haven’t had it happen a whole lot in my practice. There are enough oil and gas lawyers to go around. You may not run across the same ones all the time. In my experience, a lot of general practice or general litigation types who do other types of work will dabble into it. I run across lawyers on the other side who have never handled oil and gas cases before. I try to make it my priority to make sure that they never want to do it again because we kick their butt. The next time they have something come up, they’re going to think of me and send it to me. That’s tough. It’s a fine line to walk to stay friends with people and try to kick their butt.

That seems dangerous for a general civil litigator to take on an oil and gas case. I know some appellate lawyers who take the same approach when facing a general civil litigator in an appeal. We don’t necessarily want to run them over and make them feel worthless. We want them to call us the next time after they lose.

I’ve had it happen repeatedly. I’ve seen companies before that I now represent. Lawyers on the other side call and say, “Can you help us with this?” I take that as a compliment and I know you all do too.

You should. To me, there’s no better feeling in the world than when you get called by a former opposing counsel who’s going to refer his client to you to handle something within your area of specialty. That goes a long way and it illustrates the point about professionalism in our profession, the need for it, and how it can pay off down the line.

One thing I wanted to touch on and you don’t have to go into much detail, you mentioned working on water law earlier in your career. Can you talk a little bit about that? I recognize the concept, but I don’t know the nuances of what that type of practice looks like.

What I was planning to do when I came out of law school was water law. The basis for that was knowing how important it was going to be for the state. The scarcity, the population growth and the developing area of the law, I thought it would be in demand and it certainly is. My transition to oil and gas has nothing to do with the status of practicing water law in Texas. It is still super important and sexy. It’s an interesting and important policy-level work that I would encourage anybody to look into, now that the client base is more limited and how much you can do. The car wreck, it’s not like that. Every day, something’s happening. You got to put thought into where those clients are going to be.

I love water law. Now, I’ve gotten away from it because oil and gas took over my practice, but I was appointed by the governor to serve on the board of the Brazos River Authority back in 2016. I can’t do any surface water type of work in the Brazos Basin because it might be potentially adverse to the interest of the Brazos River Authority and as a director, the fiduciary duty of that organization. I will consult with and help people outside of the basin if it’s not going to impact something that we’re doing. To anybody interested in that, I would encourage them to look into it and explore. Find a mentor who can explain the business realities of it as much as anything. You’ve got to be in a firm that’s going to do that and find a client base. I love water law. I just don’t get to do much of it.

It seems like in both oil and gas and in water law, there’s a layer of administrative law that kicks up from time to time. You mentioned that about administrative work. The Texas Commission on Environmental Quality is one agency that comes to mind. Are there others? What do you have to say about the administrative aspects of what you do?

In oil and gas, there are a handful of lawyers in Austin who have developed a good railroad commission practice and they’re the go-to people. It’s probably difficult for someone outside of Austin to break into that. It happens and it’s a client-by-client thing, but you got the Railroad Commission and TCEQ. There’s some overlap between TCEQ and the Railroad Commission about how they regulate the environmental aspects of the industry. You’ve got potential federal involvement from EPA and air stuff to worry about. If you get in the pipeline things and you got the pinch share of the pipeline health safety. The federal organization and now the Texas Public Utility Commission is involved in rates in that aspect of the industry.

Financing stuff can go through the Water Development Board. There are things that the Water Development Board does that impact infrastructure and projects. At an even more granular level, you’ve got a Groundwater Conservation District. Most of Texas has a groundwater conservation district covering and regulating the production of groundwater in that geographic area. That can be one county big and can be 2, 3 and 4. They vary in size and they’re based on political boundaries, not hydrologic or geological boundaries. That gets interesting too. In everything in our world now, there are layers of regulation upon regulation that have to be dealt with and overcome.

I don’t know that I had a full appreciation for all the different layers and the complexity of your practice area. I’ve had limited exposure to it in my practice. It seems to me to be complex. There are a lot of moving parts and traps that one can fall into if they don’t touch the bases in the right order.

That’s where that network comes in. I’m blessed to be in a law firm. I haven’t got an update of how many lawyers we’ve got but 35 or so that are oil and gas lawyers. Some of them certainly do other things, I don’t mean to pigeonhole anybody. If I’ve got a client who has an issue with a joint operating agreement, I’ve got somebody I can call on. I’m not going to give the client advice on that. If it’s a securities issue or whatever, that’s the niche specialties within the industry. You are more than what people realize for sure.

As we’re getting toward the end of our time, we wanted to ask you about what you’d mentioned in advance, that was mentoring and the importance of mentoring. If you’d like to talk about that a little bit.

You mentioned that you had the benefit of mentors in your career. We’ve talked about that on some of our shows in the past. Specifically, what I was curious about was you’ve mentioned mentoring was important to your development. Are you able to carry that forward and spend some time mentoring younger lawyers in your present situation?

I do that as much as possible. I know professors at the law school at Tech, A&M and Baylor. The oil and gas professors know that if they have a student come to them who’s interested in pursuing a career in this area of the law that I’m on their list of people that they can connect with, and I do. I spend time talking to them on the phone if they’re not local, or go grab breakfast or coffee. That’s very important.

I would encourage any law student or young lawyer to not be afraid. Don’t hesitate to reach out to people. If they don’t have time, they’ll tell you usually. Hopefully, they won’t just leave you hanging. It’s flattering to think that somebody wants your input. It is one thing that people overlook. People are more than willing to reach out. In my career, I have been immensely blessed with great mentors.

person talking on cell phone

Oil In Appellate Courts: Have appellate lawyers you trust, and don’t hesitate to call and let them bill you because it’s worthy advice.

First jury trial I tried as lead counsel, the partner came, it was four days. He sat there with me, helped me and guided me. I handled the whole thing but he was there and had a lot of advice along the way. He didn’t bill the client anything. That’s what it takes. That’s an extreme example that people shouldn’t get their hopes up for. It should have been me not billing the client and him billing the client because I’m the one getting the experience. People like that, I value tremendously. That was many years ago and I still lean on that guy.

My first appeal was at the Fifth Circuit and the lawyer who I was helping did them all the time and let me do it when we got the appeal. He said, “Help me with this. If we get an argument you can argue it.” He didn’t think we were going to get an argument but we did. I was lucky to argue at the Fifth Circuit about eighteen months after being licensed to practice. Those kinds of people, if you can find them, I’m luckier than most in that regard. Find them, keep in touch with them, and give them value too. It needs to be a two-way street. You can’t be a parasite. Think of things you can do for them, keep in touch with them, and lean on them when you need to, even just to brainstorm.

We talked about working remotely and that’s probably the thing. The only downside I see to working remotely is not having three floors of lawyers to walk the halls and see somebody and say, “What do you think about this?” It takes more effort to pick up the phone, call somebody, and you don’t know if they have time for you because you can’t see them. I lean on other people a lot and I try to return the favor anytime I can.

When you get the benefit of that contact with another human being, you mentioning working remotely, and we’ve been dealing with the pandemic and things have backslid a bit in terms of our ability to get out and resume a normal life. It seems like mentoring either as a mentor or a mentee is one opportunity to have those human touches that mean a lot especially in times like we’ve been experiencing. Thanks for what you do in trying to help other people. Jody and I both agree 100% with what you said. It can make a big difference. We’ve been on the receiving end of it and it’s a good thing to be on the giving end of it and pay it forward as we say.

We’ve been asked that. Having to think through things and having a voice makes me reconsider some things in terms of if I have to give somebody advice. I thought this through and I might have had a misconception about it. Nothing major but it helps us for sure.

We always like to close by asking our guests for a tip or a war story. Anything you’ve got that you’d like to share?

I don’t have a lot of war stories over the years but the tip I would have pretty early on is to read The Rules of Appellate Procedure very carefully. They call them TRAPs for two reasons. One is it’s an acronym. The other is that it’s an analogy. I had a case where in the trial court the judge went with me on something because I won procedurally or technically. The other side didn’t comply with procedural rules that they had to in order to win their side so it wasn’t easy. He was right in his decision.

The other side decided to mandamus anyway because it was an important issue to them, and they felt like there were equitable arguments that they could make. I don’t think they would have been successful in mandamus because he was clearly within his discretion. They would disagree with what I just said also.

They file their petition for writ of mandamus and go up, and that was in the fall of that year. In the spring, after they had filed and it was still pending, the appellate specialist, a big name and a legend in Texas appellate practice, not just oil and gas. The trial counsel had farmed it out to an appellate specialist. The point here is the benefit of having an appellate specialist. He called me and he said, “There’s this little rule in the TRAPs that most people don’t know about. I hate to tell you this but this has to go back to the trial court automatically. I just need to see if you’re going to be opposed to it because you can’t mandamus a new judge for what the old judge did, and your judge went off the bench. There’s a new district judge effective January 1st.” I said, “That can’t be right.” I looked it up and he was right. It had to go back.

The fact that I had won on a procedural snafu on their part, they were going to make darn sure it was not repeated. There was no point in even having the hearing again. If that appellate lawyer had not had that experience and been that good at what he does, or if he had left it with the trial counsel, or if the trial counsel had taken it up on their own, they wouldn’t have known about that issue. It had a significant impact on the case. There was no point in teeing that hearing up again because they weren’t going to make that same mistake again. Essentially, I lost the hearing after winning it.

Read the TRAPs and call the appellate specialists. Pay them for their time. Even if you want to continue handling it, brainstorm with them. It’s better to send it out completely most of the time. There’s some benefit in staying on because you know the facts but it can also be counterproductive because you’re in the weeds. On appeal, what matters is what the record says not how they said it or what’s your recollection is of how in the heat of the moment of a trial or a hearing, how you came across with what you thought what was going on or things you heard that weren’t said in the record. You need somebody to read it on paper because that’s what the appellate judges are going to do. I encourage everybody to have a list of appellate lawyers you trust. Don’t hesitate to call and let them bill you. It’s worth the advice.

I don’t think you’re going to hear any disagreement here.

I promise this was not a paid advertisement.

For the record, they did not ask me to give that advice. That is my honest advice. I did know you all would like that but it’s all true.

Wesley, thank you so much for spending time with us. It was educational for me and I hope it will be for our readers too. We appreciate you being with us.

I’m happy to. Thanks for having me.

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About Wesley Lloyd

Wesley LloydWesley Lloyd handles litigation and appeals in disputes involving upstream oil and gas operations and midstream pipelines. He has successfully represented clients as lead counsel in numerous trials and hearings, and has argued appeals at the Texas Supreme Court, the Fifth Circuit Court of Appeals and intermediate state appellate courts. Mr. Lloyd is Board Certified in Oil, Gas & Mineral Law by the Texas Board of Legal Specialization.

Mr. Lloyd also represents clients in government relations, including outreach to elected officials and agency personnel at all levels of government. For eight years he served as Governor Perry’s appointee on two important statewide boards that are responsible for leasing state land for oil and gas development, and he currently serves as Governor Abbott’s appointee to the Board of the Brazos River Authority.

Mr. Lloyd has also completed the 40-hour mediation training course and offers mediation services in certain cases that fall within his areas of expertise.

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Photo of D. Todd Smith D. Todd Smith

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd…

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

Todd earned degrees from Texas Christian University (B.S. 1989), Texas Tech University (M.P.A. 1992), and St. Mary’s University School of Law (J.D. 1995). While in law school, he was editor in chief of the St. Mary’s Law Journal and interned with Fifth Circuit Judge Emilio M. Garza (ret.).

Before joining Butler Snow, Todd served as a briefing attorney to Texas Supreme Court Justice Raul A. Gonzalez (ret.) (1995-1997), practiced with Fulbright & Jaworski L.L.P. (now Norton Rose Fulbright US LLP) (1997-2006), and ran his own civil appellate boutique (2006-2021). He is certified as a specialist in Civil Appellate Law by the Texas Board of Legal Specialization and regularly appears on Thomson Reuters’ Texas Super Lawyers list.

Todd frequently writes and speaks on appellate-related topics. In addition to publishing Texas Appellate Strategy, he is the creator, producer, and co-host of the Texas Appellate Law Podcast, a weekly show that demystifies appellate law and pulls back the curtain on the appellate system through conversations with judges, court staff, and practitioners.

Todd sits on the State Bar Board of Directors, is immediate past chair of the Austin Bar Foundation, and is a past-president of the Austin Bar Association. As Austin Bar president (2019-2020), Todd spearheaded creation of the Lawyer Well-Being Committee, which aims to educate, support and connect the Austin legal community to achieve more balanced, mindful, and joyful lives and practices. He also serves on the Judicial Committee on Information Technology, is a trustee of the Texas Supreme Court Historical Society, and is a member of the Robert W. Calvert American Inn of Court.