Recently, I handled an appeal that was (how should I say this)… a mixed bag. That’s not uncommon. Most times, there are multiple issues at stake and multiple ways you can win… or lose. One particular issue in this mixed-bag appeal required that I defend the factual sufficiency of the evidence supporting my client’s award of attorney’s fees. Thanks to Rohrmoos, Yowell, and the like, I knew there was a possibility that this issue would get remanded because the testimony was less than… well, specific, to say the least. But I charged ahead and fervently represented my client’s position.
When we received the opinion, I understood why the court of appeals summarily dismissed our evidence on attorney’s fees as lackluster. But then something strange happened. The court had one of those striking moments when it curtly remarks on a party’s appellate strategy. Ooof. Those can be painful. The next paragraph in the opinion started with, “But wait, there’s more.” The court went on to uphold the award of attorney’s fees because it found that the opposing party conceded this issue in its own appellate briefing in a statement that I would describe as, “we’re not even concerned about that because we win for this other reason.”
Now, if you are reading this, you are quite possibly a trial attorney that has experienced or been witness to something like this. Or you have been inundated with the constant barrage of nuanced requirements to preserve and present your case on appeal. I certainly have. Experiences like the, “But wait, there’s more” opinion, happen often enough that the possibilities consume my thoughts. My own experience has repeatedly taught me that full preparation is the essential key to arriving “present and ready” to advocate for the client.
So, starting February of 2024, you can come here to the Present and Ready Blog for a little dose of knowledge that might (there’s only so much I can do) help you sleep at night. As an appellate specialist that cannot seem to stop jumping into the trenches at the trial stage, I often find myself questioning what else I should be doing to preserve all the meritorious positions possible. To further this never-ending quest, the Present and Ready Blog will offer appellate insights on trial strategy, error preservation, and procedural issues that seem to cause those nagging questions in the back of our minds. From providing updates on new precedential appellate cases to suggesting strategies for preparing your case for appeal, we will strive to offer something of value to trial practitioners.
And, as any experienced trial or appellate attorney knows, being surrounded by a team always proves essential. So, the Present and Ready Blog will routinely incorporate the insights of other experienced trial and appellate attorneys to co-author blog posts. Not only will the team approach expand the knowledge base for the blog, but it will allow diverse insights for a fresh perspective. Be sure to stay tuned to hear from my first co-author who is undoubtedly a Texas appellate luminary.
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