Employment cases present unique challenges in both state and federal courts. Attorneys who practice in that area have to operate comfortably in both forums and understand some of the traps that less experienced practitioners might miss. Sole practitioner Jason Smith has been practicing employment law in trial and appellate courts for most of his career. Jason joins Todd Smith and Jody Sanders to discuss how he handles those cases and ways to thrive in solo practice. He also discusses the impact of his time working as a briefing attorney and staff attorney at the Texas Supreme Court. Jason offers his unique perspective on using the law to help clients and right wrongs.

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Employment Law and Attorney Fees from the Employee Perspective | Jason Smith

Our guest is Jason Smith from Fort Worth. Jason, welcome to the show.

Thanks, guys. It’s exciting to be here with real appellate lawyers.

That’s debatable. It depends on how you define appellate lawyer. We, appellate lawyers, do a lot of different things. I know that your practice, even though you do a whole lot of stuff in the Trial Court, appellate work is part of your practice. We are happy to visit with you about all aspects of that and more. To give our readers a sense of who you are if they don’t know you, tell us about your background, where you come from, and what got you to where you are.

My dad was a pilot in World War II, and after the war he moved to Fort Worth, Texas with my mom and they started a family. My big brother was the first local to be in the Van Cliburn Piano Competition. He’s a classical pianist. He’s super talented. I went away for college to San Antonio to go to St. Mary’s, and then law school at Texas Tech. After clerking in Austin, we moved back to Fort Worth and have my own practice trying to help people.

One of the things that we have talked about was your experience. You said you went to undergrad at St. Mary’s, which was my law school. I know way more people that went to law school there than undergrad. I have known some, but you specifically talk about your experience at Texas Tech Law School and how that helped to shape you and was a good experience for you. Will you expand on that a little bit for us?

St Mary’s is a great school for pre-law and pre-med students, but I didn’t have the money to make the law school work. When I went to Texas Tech, it was $90 a semester hour and it was $1,500 a semester with fees. It was a great place to go to law school because there was not much else to do and distract you. Dean Frank Newton put Texas Tech on the map by holding students accountable.

At one point, he was putting a third of the student body on scholastic probation, not because they belonged there but because they wanted to scare folks into passing the bar and that’s what they did. In my year, 97% of our class passed the bar. Only two people flunked it. We were a machine. Texas Tech is a small pond. It was great for me because I got an opportunity to work at the Texas Supreme Court along with a lot of the big-brain people who’d come from the University of Texas, Harvard, Yale and Georgetown. It was a great opportunity.

I would not think of Texas Tech as a small pond. Maybe it was in the ‘90s.

I think it’s a small pond in terms of there’s not a lot of focus there. Certainly, now Texas Tech is sports dominant in baseball, basketball and not football yet, but some future football dominance. It certainly put itself on the map, but Texas Tech in terms of law school is a great place. It’s a hidden gem and a small pond where you can develop some skills.

Did you know coming out of law school that you had an interest in appellate law or did you think Texas Supreme Court seems like a great place to go and learn something?

I was planning to be a bankruptcy lawyer. I thank God every day I got the clerkship at the Texas Supreme Court because my plan was to interview at the Texas Supreme Court as practice for the world series of clerkships, to clerk for a bankruptcy judge and the interview with the bankruptcy judge. Dean Newton called me after I interviewed and said, “Jason, you don’t understand, if the Texas Supreme Court justice offers you a job, you say, ‘Yes, sir. I will see you in August.’” I hung up the phone with Dean Newton and I picked up the phone, and it was Jack Hightower offering me a job at the Texas Supreme Court. There disappeared my dreams of being a bankruptcy law clerk.

Sometimes the path chooses you and you don’t choose the path.

How was your time clerking with Justice Hightower? It was a different court than we have now. Maybe it’s different personalities.

The Texas Supreme Court had just come out of the ‘80s and the 60 Minutes exposé on “Justice For Sale.” Justice Hightower was part of a group of judges elected in 1988 that restored confidence in the court and gave balance to the court. Justice Hightower was a moderate. He was usually the swing vote, he and Justice Gonzalez.

From that vantage point, it was fascinating to watch the far ends of the court hold each other accountable. The best opinions I saw written or opinions that never made the light of day because Justice Hecht would write an opinion, and then Justice Doggett would write a dissent that would point out flaws. Justice Hecht would tighten up his opinion based on that draft. It made for coherent, consistent law when you had those two ends holding each other accountable.

I remember some opinions from that time where things were a little almost out of bounds in terms of what we usually see in judicial opinions from the Supreme Court. It’s fair to say that those two challenged each other in many ways, but I wish I could have seen some of those drafts and what the starting point was versus the endpoint and have that insider information. One of the best things about clerking at the court is being able to watch that process unfold.

The opinions were a little more personal than Justice Hightower was comfortable with. He was more focused on policy being a former member of Congress and a former member of the Texas Senate. The substance of those opinions holds up in terms of coherent jurisprudence both from Justice Hecht and Justice Doggett. I think they kept each other honest and we had more balanced decisions because we had some moderate justices and we had justices at either end. It served Texas jurisprudence.

You alluded to it and that was one of my questions. You were there at an interesting time when the court had transitioned out of the 60 Minutes period that was so infamous. It seems like there probably was a big emphasis on accountability and honesty in opinions to make sure that it all got out the right way.

Sometimes it was not personally comfortable because some people did have a style that was a little more acidic and some would take it personally. You can debate that. Maybe it could be done without that, but the results show that case law stands up. The other thing about clerking at the Texas Supreme Court from a place like Texas Tech, there was another law clerk from Baylor and there’s one from the University of Houston. We had the Yale and all the University of Texas people and the Georgetown Law clerk.

It showed that law is pretty universal and we did not feel out of our element. We did have a dictionary for UT, Yale, Texas Tech, University of Houston words. The UT, Yale word was paradigm, and the translation for the University of Houston, Texas Tech was fame. We had a dictionary so we could understand one another. That diversity was interesting and you learn a lot being from a small pond at Texas Tech and seeing bright people who work for the court.

After your clerkship, how did your practice develop into what it is now?

person in suit writing in notebook

Employment Law: If you present your case the right way, at an appellate level even conservative courts will issue opinions and not just stick with ideologies. They’ll do what the law requires.

I went and worked for a downtown law firm in Fort Worth that represented the school district and represented General Dynamics, which turned into Lockheed, doing employment work. I did some personal injury work for the other half of the firm. It gave me a great opportunity and I founded the Tarrant County Appellate Section with Justice Gardner, who was the president of the Tarrant County Bar and was behind it.

It took off from there and I went back and worked for the Texas Supreme Court as a staff attorney until Justice Hightower retired. I worked with the Attorney General. Austin is a hard place to be a grownup. I had to move back to Fort Worth and I worked for Art Brender, who is an amazing lawyer. He was the only lawyer to win a Civil Rights case at the United States Supreme Court in the 1980s and the ring quest court, a case called Clara Watson versus Fort Worth Bank & Trust. Art Brender showed that good lawyering at an appellate level, even with conservative courts, if you present it the right way conservative courts are going to issue opinions. Not just stick with ideology but what’s the law.

Where I first came in contact with you is when you were on your second rotation with Justice Hightower. I remember you from those days, and even though you had to be a young lawyer at that time, I know you had Justice Hightower’s respect and he relied on you a lot as the justices tend to do with their staff attorneys. Being in a position to come back as a staff attorney as a young lawyer must have been a privilege.

Working at the Texas Supreme Court informs your ability to practice as a trial lawyer because you are looking back at a trial. You’re looking at the mistakes and what has to be done to preserve the record. It more fully informed that because I had been in a courtroom and I had tried a case. I came back and then it all clicked even more.

It’s amazing and clerkships are great. I’m glad that the Texas Supreme Court still has clerkships that are year-long for lawyers, and then those lawyers go out in the world. That helps the bar. I wish there were a little bit more diversity of practice that those folks went out to, but it’s great. I wish more courts would keep that because that’s good for the bar to have people inside those courts coming out and giving insight into how they do it. As a first-year lawyer, there is a lot you don’t know when you get out in that second year after working at the court that you are like, “What do you mean I don’t get to write the judge’s opinion?”

If a partner wants to come in and edit all your work. “My writing was good enough at the Texas Supreme Court. What do you mean?” You were at the AG’s Office for a while, then you went back to Fort Worth and went in with Art. That was when you went in with Art Brender, but you have had your own practice for quite some time now. Tell us about what you do on a daily basis at your law firm.

In 2014, Art throttled back and I started my own practice representing people in employment cases and personal injury cases. I would win cases and then the defendants would want to resolve the cases or pay the judgment and they would appeal it. I got a lot of appellate experience that way, and then the other thing is I have a lot of what people would popularly call Civil Rights cases with that bent to them.

When you sue governmental entities, there are a lot of interlocutory appeals. I have also gained a lot of appellate experience through those interlocutory appeals that drag out those cases pending at the Trial Court. I had a great experience in Campbell versus Wilder, which was a case that involved the charging of court costs to indigent folks.

I got to work with Chief Justice Jefferson, who had retired and had agreed to represent some folks who were being forced to pay court costs by the district clerk even though they had been declared indigent. Watching Chief Justice Jefferson and his colleague Amy Warr, such high level talented appellate lawyers, gave me a whole another idea about how appellate law can be used to advance your State and Federal Court trial practice.

Your orientation is you are representing mostly individuals in labor and employment cases and some PI cases.

I represented a lesbian teacher who was reprimanded after she showed a picture of her fiancée to her class. I argued a case for some Fort Worth police officers that reported violations of law by another police officer who was abusive towards an African-American family. I had an age discrimination case that went to the Fort Worth Court of Appeals and the Texas Supreme Court. I have had an arbitration case. I have had a lot of employment and personal injury cases. It’s mainly employment on the appellate front, honestly. There’s something about employment law that seems to be more attuned to the parties appealing it rather than personal injury cases.

We have not talked about that topic much since we started this episode, so it’s interesting to hear about it.

Title VII and the discrimination statutes were litigated for the longest time in Federal Court, and there was a whole body of law. There was not even a right to a jury trial until the 1990s in those cases. I think that employment lawyers got much more comfortable using appeals to ferret out the claims.

By virtue of that practice a little bit, you have a lot of cases that end up in the news. How do you handle that as an attorney representing clients on the media side of things because that’s not something we have talked about much?

Sometimes a case will get into the news. I will file it and a reporter will call. Other times, I will share a copy of the petition. What I start with is I start with a client. Especially when you are suing a governmental entity or a big institution like a university or the city of Fort Worth, there is going to be some scrutiny from the public on that situation.

I start with my client and I go, “You need to decide if you are comfortable being in the news because a lot of people are not.” I have had a lot more clients say, “I don’t want this in the press if we can avoid it.” Sometimes you can’t avoid it. Sometimes the reporter calls and it’s important for the public to understand our justice system and what’s going on to give a fair account.

We try to stick to what we could prove in a court or what the law is. It’s important for people to understand that our justice system works and it can work for them because people have some misconceived notions about how the justice system is distorted. Part of that is by insurance companies putting out things that fit in with what personal injury lawsuits are. Some of it is, you have got people who are distrustful of the system. I think people out in the public need to understand the system and understand how good our system is.

Given your emphasis on employment law, you mentioned State Court cases and the trend toward some of those cases being brought in State Court. I bet you are in Federal Court an awful lot as well in addition to the state.

I am and I have ended up doing more. Sometimes you can’t avoid Federal Court because of diversity and the defendants will remove it to Federal Court. Judge Denny Chin, who was considered by President Obama to be nominated to the Supreme Court, wrote an article about employment summary judgment in Federal Court. Seventy-six percent of all employment cases are dismissed on summary judgment in Federal Court. That’s a much higher rate than State Court.

That article came out in 2012 or 2013. I think that trend has gone down a little bit because some writings by the US Supreme Court have discouraged that even with this conservative court. I had a disability discrimination case for a veteran. A guy who did four tours of duty in Afghanistan and Iraq had a disability, PTSD. His boss did not like the effect that the medicine had on him and would say these awful things about his PTSD and then fired him for bogus reasons.

The Fifth Circuit was very open to that appeal after it had been dismissed by Judge Fitzwater, who’s a great judge in the Northern District of Texas. The Fifth Circuit, even though they are considered a conservative circuit, they have been more open about the disposition of these cases. I think it’s how you frame them. I don’t think you can frame them in the 1960s or 1970s Civil Rights narrative anymore. I think that they have to be framed in a more practical and modern economic way that this is a way that workers in our global economy can protect themselves from being subjected to the denial of opportunity.

It seems like a number of your cases wind up being covered in the media. It’s fun to see that media coverage even all the way down here in Austin. You mentioned that you had been considered a trailblazer in some ways. You mentioned that you won the first sexual harassment jury verdict in Tarrant County way back in 1999. It’s taken off since then.

photo of the front of a courthouse

Employment Law: People need to understand and trust the justice system. Cases that make their way to the news make people understand that the justice system works and can work for them.

In that case, it’s interesting. I represented a woman named Donna Davis who worked for the Union Pacific Railroad. She was sexually harassed in the workplace. Her granddad had worked for the railroad, so she was a real railroader. She worked on the maintenance and keeping the track safe for trains. She was harassed and then she complained about it and her boss fired her.

In Tarrant County, there are a lot of hardworking people. Tarrant County does not have a bunch of corporations. It has a bunch of workers. Tarrant County jurors are not that generous or understanding in personal injury cases. I think it is their reputation. Not everyone in Tarrant County has a sore back, but everyone has a job and if they see someone is rooked out of their job, they will do something about it.

In that case, what upset the jury more was how she was treated after she tried to get something done about the sexual harassment. They showed that women hadn’t been fully in the workplace with the respect they deserve in the workplace to contribute. We still see those types of cases in Tarrant County, unfortunately.

I also think that the age discrimination lawsuits are also with companies when they try to reset and bring in young blood. Age discrimination cases are alive and well, and then race discrimination cases are sadly alive and well. There has been an uptick of race discrimination in the workplace in the last few years. It was kept under a hat for a little while. The folks with those racist attitudes have shown themselves again. That’s something we are going to have to deal with as a society. One way to deal with it is through these anti-discrimination laws.

The one thing that we don’t often think about from the appellate side is all the administrative buildup that you have got to go through to get a case even into court in the first place when you are talking about a labor and employment case. You have become an expert in how to do that under both the Federal and the state acts.

I tell my clients that employment discrimination lawsuits are the only lawsuits that you have to file a complaint with the governmental agency before you can go to court. If you want to sue in State Court, you have to wait 180 days before you can get the right to sue and go into court. That hurry up and wait, sometimes the clients forget. I will tell them that and they will call me after about 3 or 4 months and go, “Why are not we doing anything?” “We’ve got to wait 180 days.” The idea of the EEOC and the Texas Workforce Commission Civil Rights Division was well intentioned. I don’t think they are appropriately funded to be able to investigate all of these complaints.

I do think that the complaint process gives people a pressure valve to feel like they at least were heard, but they do hold up folks from being able to bring a case immediately in court. Sometimes when evidence gets stale, when a case gets older, a jury can get less interested or feel there’s less urgency to do something about it.

You do have to jump through those hoops and if you don’t, these employers will hold you to account. You need to cross your T’s and dot your I’s in filing those complaints and giving the agency an opportunity to investigate it if they are going to investigate it. They don’t have the resources to do that. That might be a requirement that needs to be re-examined at least as a mandatory requirement. Maybe it’s an optional requirement.

You bring up something that raises a good point for people that if you don’t do employment law, then don’t pick it up as a hobby because there are a lot of mines and traps along the way that you can mess up if you don’t know what you are doing.

The courts have been very particular about making sure all of the requirements are met, especially when you sue a governmental entity. For instance, there was a case out of the Fort Worth Court of Appeals where someone got it. It was an age discrimination case and they got over a $1 million verdict and they filed suit on the 179th day.

The court said, “You have to wait 180 days to sue,” and because they did not wait 180 days to sue, there was no jurisdiction and they reversed the verdict. The problem is not only do you file your complaint in time, but then you also wait long enough so there’s not some claim that you have jumped the gun.

It’s the opposite of limitations.

It’s a real gotcha. You mentioned governmental entities about sovereign immunity. How do you have to deal with sovereign immunity in your employment cases?

The Texas courts have basically said that they treat any motion for summary judgment on the merits of the case as a challenge to the sovereign immunity challenge. Those are subject to interlocutory appeal. If I sue a governmental entity, when I’m planning out the case I plan it out that I’m going to have an appeal in the middle of the case. That’s probably going to eat up 1 to 2 years.

I have another gay rights case where I represent a lesbian against a community college here in Tarrant County. They challenged her ability to sue to begin with, and then the governmental entity appealed that at the Dallas Court of Appeals. I work with the Human Rights Campaign, which is the NAACP but for gay rights.

They filed an Amicus at the Dallas Court of Appeals saying that gays and lesbians should be protected under the State Labor Code and the Dallas Court of Appeals held that. We remanded it and we have done our discovery, and now they are filing for summary judgment. They have been upfront. They are not hiding the ball. They are going to appeal that ruling if it’s denied to the Dallas Court of Appeals.

My client will have gone through two appeals before ever having the opportunity of trying the case. An important thing of representing walking around paycheck-to-paycheck people is being clear with them about what the expectations are. Part of the expectations is the time it’s going to take. I try to tell them it can take two years on average, but there are some cases I have had that have lasted seven years. I tell them that so they have some reasonable expectations.

That transitions us into another thing that we wanted to talk about with you, which is you represent individuals. A lot of your work is on a contingency fee. How do you handle the money side of things? Particularly trial and appellate fees, when you have got these cases that go on for 2 to 3 or sometimes 7 years on contingency, how does that work?

Most walking around people can’t afford a lawyer. Contingent fees provide middle-class and working-class families with an opportunity to be a part of our court system. I resigned myself to I’m not going to be fully compensated in every case for the time I spend on the case. The good thing about having done employment law for many years is now I have got a bank of briefs. I have got in my mind a general template of the legal requirements and challenges of a case and the types of evidence I’m looking for. It’s that skill going all the way back to the Texas Supreme Court of doing that no evidence analysis in so many cases and realizing what I have to do. Thanks again, Justice Hightower.

On the employment cases and the personal injury cases, I build in an escalator where my contingent fee goes up if the case is appealed. My normal contingent fee for an unemployment case is 40%. If there’s an appeal in it, it goes up another 10%. The courts have said in El Apple and the other cases around that they don’t look at the contingency fee to determine a reasonable fee.

They look at your hourly fee and the amount of time you have to spend and what’s necessary, and then the hourly rate. You’ve got to keep and present your time to the court, and then you’ve got to estimate your time for the Court of Appeals. We can talk about how that’s different from State Court and Federal Court in a minute because it’s interesting. I had an experience with that, but in State Court you get your verdict. You testify to what your Trial Court attorney’s fees were, and then you testify what your attorney’s fees are going to be on an hourly basis at every level: at the Court of Appeals level, at the petition for review stage, full briefing stage, oral argument and motion for rehearing stages. You have to lay all that out. I will say as a contingent fee lawyer, I’m not in a good habit of keeping all of my time. I think these insurance companies and these defendants, it’s a good bargain for them because I don’t charge nearly as much as I should. It’s getting out of the practice of keeping that time and being used to being a contingency fee lawyer.

magnifying glass outlining a graphic of a person

Employment Law: Employment discrimination lawsuits are the only lawsuits that you have to file a complaint with the governmental agency before going to court.

I definitely want to get into the details, but one thing that’s also important to mention here is you’ve got statutory fee-shifting going on. Not just your client, but the other side is going to see the documentation of your time. What’s important in labor and employment cases and Civil Rights cases is that they have those statutory mechanisms that authorize fee recovery.

Your client is ultimately charged at a percentage of recovery, but what the other side is going to have to pay is not necessarily lined up with that percentage. It adds a bit of a hammer to what it is you are doing because the defendants know they are exposed not only to whatever the award on behalf of the client’s going to be, but also to whatever fee award that you are successful at proving up and getting awarded to you.

I do think a lot of it, especially a lot of employment law defendants and employers. Usually, how those cases proceed is they think they have got a good defense that will get a summary judgment granted, and then human beings testify on behalf of the company and their testimony does not necessarily afford that defense.

A summary judgment is overruled, and then they are looking at a trial. At a trial, not only are they going to pay my client’s damages if a jury ruled for them and pay their lawyer to defend the case attorney’s fees, but then they are going to have to pay my client’s attorney’s fees on top of that. That’s a good mechanism that Title VII and the Texas Workforce Commission Civil Rights Division laws have afforded. That’s an incentive for these employers to come up with a resolution in these cases of discrimination.

Under the state statute, has it always been a Lodestar approach even there? One of the benefits of looking at Federal case law is you have got decades of Lodestar cases. Now that we have all had to get used to the idea of Lodestar fees when you’ve got statutory fee-shifting or contractual fee-shifting. Has it been a Lodestar under the state act as well all this time or something else?

The Texas Employment Statute 95% mirrors Title VII. The great thing about that is there is this wealth of case law with regard to the burden-shifting analysis and Lodestar attorney fee analysis and the interpretation of the damage caps. That Lodestar analysis on those attorney’s fees has been there. It’s been something that we have been comfortable with.

I will say the State Court practice, the one way it has been different, and the Federal Court practice has mirrored it in the last decade. The State Court practice has been pretty good of, “Plaintiff, if you win dollar one in damages, you are going to get all of your attorney’s fees. Not just a proportional attorney fee, but all of your attorney’s fees because that time was necessary. That reasonable rate does not change just because of the level of your recovery.” It’s interesting to watch the Fifth Circuit double back and embrace that approach. That’s certainly good for Civil Rights plaintiffs.

It seems like there is a lot more precision in the Federal system on appellate fees in particular because you can use the evidence of what you have spent rather than having to guess before you even go up.

That’s the thing about appellate attorney’s fees in Federal Court that I did not fully recognize until an appeal I had where I had a default judgment in an employment case against a nationwide furniture chain. We won at the Fifth Circuit. I had put on the testimony of my appellate attorney’s fees and the Trial Court awarded me Trial Court attorney’s fees and did not mention my appellate attorney’s fee.

I don’t think I had fully appreciated it because it’d been a long time since I had been exposed to that law, but when we won the appeal, I was like, “I wonder if I’m getting my attorney’s fee.” In Federal Court, you file a motion for attorney’s fees with the Fifth Circuit to get an award of your attorney’s fee and that’s what we did in that case.

The court ordered, “The Trial Court is going to now set your appellate attorney’s fees.” If I had known that, I would have kept a lot better time. It’s certainly fair to everyone because you are paying for what actual time folks put into the case rather than a good faith estimate, which I have seen lawyers do. Honestly, I will say 90% of the cases I have had were close to that good faith estimate in State Court, but that’s a great option in Federal Court.

In the Federal system, they don’t have the one final judgment rule. The case goes up on appeal on the merits and does not include any appellate fees, and then later has a separate judgment, which is usually not entered until after the appeal is over. The district court will sign a separate judgment, which could then separately be appealed, which creates a lot of appellate work in the Federal Courts having to do with attorney’s fee issues.

That happens in employment cases in Federal Court if you sue a corporation and an individual. I had a case where Judge Fitzwater dismissed the individual in another case I had in his court and made it final and appealable. We appealed that issue as to whether or not there was a cause of action against the individual while we continued discovery against the company on other causes of action that remain pending. That challenges your ability to keep everything straight and then coordinate everything if the case gets remanded and you have to try the whole shooting match.

The one thing that I have observed over the years is that lawyers who practice a lot in Federal Court sometimes forget that you have to prove up your attorney’s fees before or at trial in State Court and forget to do it. It is a big trap to be mindful of if you are doing mostly Federal employment law and you come into State Court. It’s something to be mindful of.

My assumption is in State Court, you have to present it. If you want money awarded for anything, damages or attorney’s fees, you are going to have to present that to a jury unless you get an agreement out of the other side that can be submitted post-judgment. I will say in all of my employment cases in State Court, I try to get an agreement that we are going to present any issue of attorney’s fees to the judge. I don’t think on both sides, I don’t think juries want to hear about what lawyers do. They want to hear about the client’s stories and what they are facing.

There’s more familiarity from a judge as to how that works than trying to explain it to the jury. I will throw out my PSA for anybody who hasn’t proven-up appellate fees in a long time in Texas. There’s a case from the Texas Supreme Court called Yowell versus Granite Operating where the court imposes a stricter standard on what you have to do for appellate fees. If you have not read it, the next time you are going to do an affidavit or testify, go read it on appellate fees because you have to be a little more specific now than you used to.

What is one big takeaway from that case?

You can’t just say a reasonable fee for the Court of Appeals is $40,000 anymore. You’ve got to say, “My reasonable rate for an appeal is this. Here are the steps and a forecast of what the hours for the particular tasks that the Court of Appeals would be.” It’s the same thing for the Texas Supreme Court. It’s more of a Lodestar formula and it does not have to be perfect because the court says, “There’s no precision because you are estimating,” but you have to give more detail than just saying, “A fee for an appeal is X.” It’s got to be closer to what you would do under Rohrmoos for trial fees.

I’ve got a couple of affectionate descriptions of Yowell and one is the court has to make a Rohrmoos guess to borrow some Federal parlance. The other I also like to call it Rohrmoos light because you are staring prospectively into the future and is still asked to give your crystal ball prediction. Still, it’s way more detailed than, “I have been practicing law for 50 years and I think an appeal should cost X.”

The jurisprudence that is going in on that is if you testify that way, you are at real risk of getting your judgment reversed and rendered on appellate fees. I have seen it happen. It’s funny how the law develops, but I have also seen some courts bend over backward to avoid that outcome. They have done it historically on the trial fees. They tried to avoid a rendition of a judgment, awarding zero fees. Otherwise, the judgment supports fees. I think that we are going to start seeing more of the rendition on appellate fees when we don’t see the evidence there that the Supreme Court, especially in Yowell, has said has to be there.

It’s a trial lawyer be aware when you are testifying about appellate fees. You need to go and read that opinion to make sure you understand what it means because it does impact potential recovery. When you are in a contingent fee situation like your cases are, Jason, it can impact both the client and the lawyer. I don’t know how your agreements are structured, but is it out of one big pot or do you segregate out the fee recovery and say, “Whatever the fee recovery is going to be is what’s first credited to the attorney’s fee portion under the contingent fee agreement?”

That’s interesting because I’m an appellate nerd. I stay up at night thinking about these issues. I think that you have to be with an appellate fee award or any fee award, you have to be careful. You can’t split fees with a client. If the client recovers $10,000 and you recover $100,000, if it’s not a settlement where there’s not any allocation, but it’s a court order where the damages are $10,000 and the fees are $100,000, I don’t think you can split those fees. What I do is I do a lump sum. There are some employment lawyers that I have seen that have a contingency fee which is 40% or the amount of any attorney fee award, whichever is greater.

three people talking with a laptop and coffee on table

Employment Law: Clients should go to case hearings. They must see the process working because it may not work for them on appeal. They should also be able to listen to both sides of the argument.

That’s probably safer from the fee-splitting situation. I think you need to be careful that it’s not seen as an unconscionable or an illusory contract where the attorney and the individual are loading up on their recovery. I say this all the time. “We are here to compensate people who have had problems and not make lawyers rich.” If we get paid for what we do, that’s great. As a contingency fee lawyer, there are some cases I’m going to be paid on, and then there are some cases that I’m going to spend a lot of time on because it’s a righteous cause and not necessarily going to put any of my kids through college.

That approach you mentioned, I have seen it done that way where it’s whichever is greater. That probably is the solution. To the extent there’s any griping about what the lawyer gets versus what the client gets, this is the nature of fee-shifting and the risk that the lawyer takes in taking on the case. Unless in a settlement, maybe you threw your client under the bus and said, “We are going to allocate $10,000 of this $100,000 to the recovery and the other $90,000 to fees,” that’s a whole different problem.

Let’s say a judgment that awards fees at $10,000 and a fee is at $90,000 and you are entitled under your agreement to take the $90,000. You put the responsibility for decision-making on that in the court’s hands or potentially in the jury’s hands. It seems like that’s an equitable outcome considering the risks that the lawyer has taken, but it’s a thorny issue and you point out some good concerns to be mindful of.

One other thing we wanted to talk to you about while we are on the subject of clients is what’s your thought on bringing your client to oral argument in the Court of Appeals?

I’m a big believer in bringing clients to any major hearing in their case, whether that be a summary judgment hearing, court trial or an appeal. It’s important that they see the process working because it may not work out for them on appeal. I want them to see that the judges are taking the case seriously but they are also listening to the other side.

There’s a tendency if you sit in a conference room with your lawyer, you think, “Why don’t we run down the field and score a touchdown?” When you take them into the courtroom and they see the oral argument, they need to see the questioning of both sides. They see that there are a bunch of people trying to tackle you as you try to put that ball downfield.

It gives them a much more realistic idea of the process, but I also think it makes them appreciate what the process is trying to do. Most clients are like, “I understand that they are trying to listen to the other side too.” I think it’s better for our system for ordinary people to see how our system works the right way most of the time.

We are getting to the end of our time together, Jason, but there are a couple of things we wanted to cover with you before we let you go. I have to ask this because I know that it exists, but do you happen to do any impressions of Texas Supreme Court justices?

When I served there at the Texas Supreme Court, they would have a First Amendment party where all of the law clerks would do a skit, sing or write a song about a judge. One of Justice Doggett’s law clerks wrote a song for Justice Doggett. It was to the tune of Margaritaville. He said, “Wasting away, I got dissents to write.” That was a great song. We did a movie about all the judges in conference. For some reason, I was selected to play Justice Hecht and I had a t-shirt made that said, “Have you hugged your insurance company today?” I remember his administrative assistant was so loud and he laughed and he was such a good sport about it.

He gets into like Ronald Reagan but, “Jason, could you get me some nachos?” That’s about as good as it is. I was a little bit looser then because I might have had a drink or two when I did the impression. It is not there, but I still have the t-shirt. He was such a good sport about it. He’s a great chief who has done such a great job advocating for making sure people have access to justice with our funding of access to justice programs.

Our tradition as we wrap up is to always ask for a tip or a war story. You have given a lot of great stuff. I don’t know if you have a war story in mind that you would like to share or a tip, either one.

One, I like to say I named my son after an appellate justice, Justice Brennan. It makes me happy every day when I read an opinion from Justice Brennan that I get to think of my son. A war story would be an oral argument I had at the Fifth Circuit on an insurance case. Judge Parker was on the Fifth Circuit at the time, and there was one case from Minnesota that went my way and there was another case from somewhere else that went the other way.

I got into my argument about five minutes and Judge Parker said, “Counsel, doesn’t this Minnesota case help you?” I go, “Yes, your honor. It’s the strongest case for me.” He goes, “Then start talking about that.” My tip would be if there’s one case that helps you, get it out there in the first sentence that you say and argue it, primacy and repetitions. Art Brender would always say, “Say it first and say it over and over.” That holds true for what Judge Parker was saying in that oral argument and turns out they ruled for my client and cited the Minnesota Court of Appeals. I have to remind myself of that. Primacy and repetition seem to pay off.

Thank you so much for joining us. This was interesting and great information. We appreciate it.

It’s a lot of fun. I appreciate the opportunity.

Thank you, Jason.

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About Jason Smith 

Jason has obtained jury verdicts and settlements for clients for over 20 years.

Jason has a proven record of taking Corporate America, insurance companies and the government to court and winning.

Jason obtained the first sexual harassment jury verdict in Tarrant County. Jason has obtained jury verdicts in dozens of employment and personal injury cases in Tarrant, Dallas, Johnson, Parker and Wise counties.

Jason has also won cases for his clients at the Texas Supreme Court, Fifth Circuit Court of Appeals, as well as the Fort Worth, Dallas, El Paso and Austin Courts of Appeals.

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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.