This document provides guidance on the critical steps after concluding a state civil trial, including strategies for obtaining appellate attorney fees, formulating a final judgment, requesting findings of fact and conclusions of law, preserving errors for appeal, enforcing and superseding the judgment, and taking an initial appeal. It outlines estimating appellate attorney fees, crafting a proposed judgment, filing requests for findings of fact and conclusions of law, preserving post-verdict errors, perfecting an appeal, and advising clients on realistic expectations for appeal. Key steps to perfecting an appeal include filing a notice of appeal, docketing statement, requesting the clerk's and reporter's records, and using the new Attorney Portal resources.

1. Your Trial Is Over—Now What?
Guidance on Perfecting and Pursuing
a State Civil Appeal
D. Todd Smith
Smith Law Group LLLP
www.appealsplus.com
David Hockema Civil Trial Law Conference
April 7, 2017
1

2. Overview:
• You have obtained a jury verdict or concluded a bench trial in
state trial court
• What are the critical next steps?
▫ Strategies for obtaining appellate attorney fees
▫ Formulating and opposing a final judgment
▫ Requesting FOF & COL
▫ Post-verdict preservation of error
▫ Enforcing and superseding the judgment
▫ Initial steps toward taking an appeal
2

3. Estimating Appellate Attorney Fees:
• Start thinking about this long before trial
▫ Pleadings → pray for fees through appeal
▫ Discovery → designate an appellate fee expert
• Often overlooked and underestimated
▫ Detrimental to your client
▫ Can establish client expectations you
don’t want
3

4. What’s the First Step
After You WIN?
Celebrate, of course!
4

5. Next Step: Take Off the Trial Goggles
5
“Dude, my case looks AWESOME with these on.”

6. Trial Goggles: Common Myths of
“Copy & Paste” and the “Two Step” Appeal
6
“My trial lawyer said that all the hard work has already been done,
and we’re TOTALLY going to win the appeal.”

7. Estimating Appellate Attorney Fees:
(cont’d)
• The “form book” problem
▫ $5,000 is not a sufficient award
▫ Lawyers and judges need to be broken of this mindset
• Amount depends on:
▫ Having a realistic view of the case – not just a repackaged view
▫ The basic steps required on appeal – not the Texas Two-Step
• Several factors to consider in estimate
▫ Pre- and post-judgment activities
▫ Perfecting appeal, pre-briefing activity, legal research, drafting and editing,
analyzing your opponent’s brief, etc.
▫ SCOTX proceedings, if any
▫ Post-appeal activity
• Even if you don’t get everything you ask for, the exercise is useful in
client counseling
7

8. The Actual Fee Award:
• Properly prove up and secure the award:
▫ Just like any fees: Sufficient evidence required!
▫ Consider bifurcating trial
▫ Award must be conditioned on appellate success
▫ Post-judgment interest is allowed on all attorney’s fees, but it
does not begin to accrue on appellate fees until the appellate
court renders judgment
• … Or successfully defend against the award
• Advise your client about realistic expectations and appellate
strategy
8

9. Crafting a Proposed Judgment:
• Should you file a motion for judgment?
▫ If you lost, and you’re the movant, approve as to form only and
use prefatory language (775 S.W.2d 632)
▫ Otherwise, risk waiving appellate rights
• Judgment elements
▫ Describe the parties and proceedings
▫ Relief awarded on the merits / election of remedies
▫ Attorney fees awarded – detailed breakdown
▫ Pre-and post-judgment interest – a (boring) CLE talk unto itself
▫ Costs
▫ Language of finality and execution
▫ Dated signature line for judge
9

10. Findings of Fact & Conclusions of Law
• Beware! It’s more complicated
than you think.
• Remember the Big Picture/Purpose:
▫ Winner: Protect your winning judgment
▫ Loser: (1) Narrow the issues for appeal
(2) Let there be reversible error
▫ Both: Extend appellate deadlines (sometimes)
10

11. FOF/COL (cont’d)
If properly & timely requested, then:
• Appropriate & Required following
▫ Bench trials and
▫ Issues tried to the bench
• Appropriate but Discretionary following
▫ Appealable order/judgment upon evidentiary hearing
and
▫ Appealable interlocutory orders
• Family Code: special rules
11

12. FOF/COL (cont’d)
• Not appropriate to request, file, or
consider on appeal when:
▫ Judgment is rendered as a
matter of law on undisputed
material facts
▫ Non-evidentiary dismissals and defaults
• No extension of appellate deadlines
12

13. FOF/COL (cont’d)
• 1st Request: 20 days from Judgment
▫ Winner submits Proposed FOF/COL
▫ 1st Deadline for Entry: 20 days from Request
• 2nd Request: 30 days from Request
▫ “Past Due Notice”
▫ 2nd Deadline for Entry: 40 days from
original request
• 3rd Request: 10 days from Entry of FOF/COL
▫ “Request for Additional/Amended” (+ Objections?)
▫ 3rd Deadline for Entry: 10 days from 3rd Request
13

14. Post-Verdict Error Preservation:
• Most errors are preserved during trial
• But remember post-verdict preservation:
▫ TRAP 33.1
▫ TRCP 301, 324, 329b
• Jury trial: You MUST file a MNT (and pay the FEE) within 30
days of judgment to raise:
▫ Factual sufficiency
▫ Complaint on which evidence must be heard (i.e., jury misconduct or
newly discovered evidence)
▫ Inadequacy or excessiveness of damages
▫ Incurable jury argument not already ruled on
14

15. Post-Verdict Error Preservation (cont’d)
• Jury trial: To preserve legal sufficiency challenges, file:
▫ Motion for JNOV
▫ Motion to disregard the jury’s answer to a fact issue
▫ Motion for new trial specifically raising the complaint
▫ Preserved during trial by motion for directed verdict
or charge objection
• If a Motion for NEW TRIAL all you bring,
then a NEW TRIAL is the most you’ll get!
15

16. Superseding & Enforcing the Judgment:
• Perfecting appeal does NOT suspend!
• Methods
▫ Bond or cash deposit
▫ Written agreement
▫ Alternate security as ordered by the court
• Calculation of security for a money judgment:
▫ Compensatory damages awarded in the judgment
▫ Interest for the estimated duration of the appeal
▫ Costs awarded in the judgment
▫ But not attorney fees unless they are a separate element of
damages (sigh…)
16

17. Some Forthcoming Free Tools:
• supersedeascalculator.com
▫ Online form that calculates amount of security needed to
supersede a particular judgment
▫ Currently in development
• postjudgmentinterestcalculator.com
▫ Online form that calculates postjudgment interest and judgment
payoff amount
▫ Should go live any day
• Bookmark the sites for later reference or email
todd@appealsplus.com to get access when they are
available
17

18. Other Supersedeas Issues:
• Supersedeas caps
▫ LESSER of 50% debtor’s net worth
or $25M
▫ Net worth affidavit + TRAP 24.2(c)
= STAY pending a potential contest
▫ Negative net worth = Nø bond
▫ Makes it easier for debtors to appeal
• Adjustment of supersedeas amount
▫ Proof of “substantial economic harm” = deviate from formula
▫ Trial court retains jurisdiction to adjust amount and type of security
▫ Court of appeals can review on motion
18
He’s missing all
the important
stuff!

19. Commencement & Perfection of Appeal
19

20. Calculating the Deadline to Perfect Appeal:
• Runs from date that judgment or order is SIGNED
▫ TRAP 26.1, with limited exceptions
• Deadline varies by type of appeal
▫ Regular appeal: 30 days
▫ Accelerated appeal: 20 days
▫ Restricted appeal: 6 months
▫ Cross-appeal: 30 days from judgment
or 14 days from 1st NOA (if timely)
• Motion for extension of time is available
▫ TRAP 10.1, TRAP 26.3
20

21. Steps to Perfect Appeal:
• Notice of Appeal (TRAP 25.1(c))
▫ File in trial court only
▫ Special language required for:
 accelerated appeal
 restricted appeals
▫ Consider if cross-appeal is necessary
 (vs. cross-issue)
• Filing fee: $205
21

22. Other Initial Steps:
• Docketing Statement
▫ Was specific to each court’s website
▫ Now it is UNIFORM in all courts
▫ Download and complete electronically
▫ Must file “promptly” after NOA (TRAP 32)
• E-filing is now mandatory in appellate courts
▫ Read the rules to avoid getting bounced
▫ Redaction – watch for confidential information
▫ Court websites have helpful resources
22

23. Other Initial Steps (cont’d)
• Every Texas attorney is now required to register an email
address for service through the MyTexasBar page
23

24. Other Initial Steps(cont’d)
• Register for CaseMail (electronic updates)
as soon as the appeal is docketed to receive
notification of “case events”
24

25. Other Initial Steps(cont’d)
• Request Clerk’s & Reporter’s Records
▫ Written request, served on all parties
▫ Make arrangements to pay
▫ Specify contents – but don’t request unnecessary contents
▫ Can request supplementation
▫ Clerk has deadline to file, but often takes longer
▫ Briefing deadline runs from filing of record
25

26. Other Initial Steps(cont’d)
• Get a copy of the record
• CaseMail will tell you when filed
• But never pay a trial-court clerk or a court
reporter for the record
• Getting a copy by:
▫ Calling the appellate clerk and asking if they’ll
email or burn to disc
▫ Better yet, take advantage of the brand-new
Attorney Portal
26

27. Attorney Portal
27

28. Attorney Portal(cont’d)
28

29. Attorney Portal
29

30. Advising the Client About the Realistic
Expectations for Appeal:
• Two key questions:
1. Should we appeal?
2. If so, which issues
should we raise?
30

31. Expectations Analysis:
• Factors to consider:
▫ Standard of review
▫ Chances of success
▫ Likely costs / expenses
▫ Anticipated timing / overall duration
▫ Temperament of our potential panel on these issues
▫ Settlement possibilities and impact of appeal
31

32. Helpful Resources:
• Office of Court Administration website
▫ Statistics for every court in the state
▫ Dispositions and average times
• Reasons for Reversal
▫ Breaks down statistics
▫ By court and type of case
• An appellate lawyer!
32

33. And Remember…
33
Friends
Don’t Let
Friends
Appeal with
their Trial
Goggles On!

34. D. Todd Smith
Smith Law Group LLLP
www.appealsplus.com
34