1. Preservation of Error For the Irreplaceable Paralegal
Attorney & Former Paralegal
Denice Smith

2. Touchstone of Error Preservation = TRAP 33
Bottom line-
Did we set ourselves up for success?

3. Tex. R. App. P. 33
(1) Did we timely advise the trial court of our complaint?
How? Motion, objection, trial brief
From the P/L perspective, usually in writing

4. Tex. R. App. P. 33 (2) Did we get a ruling?
How? Usually orders, following up with the clerk or court reporter.
If at trial, did our trial atty get an actual ruling, or did she get ”move along counselor”?

5. If it wasn’t charted, it didn’t happen.
= Saying in the medical community

6. Appellate Perspective
How to lay the best blue print
In case things don’t work out our way
Yes, it’s somewhat defensive AND

7. If you take care of the small things, the big things take care of themselves.
--Emily Dickinson

8. Know the Rules! Texas Rule of Civil or Appellate Procedure
That applies to your situation
You’d be surprised how many people don’t know and follow them.

9. Starting Simple –- Service?
How’s your certificate of service?

10. Typical:
Certificate of Service This Notice was served on all parties via electronic filing on this the 2nd day of December, /s/ John Doe _________________________ John Doe

11. TRCP 21a (e) - See Appendix D How did he do?
Name & address of person to whom sent document
Specific method of service (e- filing, CMRRR, carrier pigeon)
Date it was sent
Signature of the attorney so certifying
Certificate of Service This Notice was served on all parties via electronic filing on this the 2nd day of December, /s/ John Doe _________________________ John Doe

12. CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing appellant’s brief has been served on the following parties and counsel of record on this May 13, 2016:
Counsel for Appellee Clinton Bradley:
Lawrence M. Doss
SB No
___X___ Via e-filing &
Latrelle Bright Joy _______ Via Hand Delivery
SB No ________ CMRRR
_________ Via Regular Mail
P. O. Box _________ Via Fascimile
Lubbock, TX
Tel: (806)
[Pretend like my real signature is here!]
________________________________________
Denice Smith

13. Written Discovery Objections to Responses Failure to Answer
If a party refuses to file answers, the party seeking discovery may ask the court to dismiss the suit, render a default judgment, exclude evidence, or impose sanctions. Tex. R. Civ. P. 215

14. It’s not over till it’s over . . .
TRCP 193.6:
If a party fails to timely make, amend, or supplement a discovery response, the undisclosed evidence or information is subject to exclusion unless the party proves to the trial court that there was good cause for the failure, OF that the failure would not unfairly surprise or prejudice the other parties.

15. Know the Rules!!
Recently had someone “add” something onto the list of TRCP 194 Requests for Disclosure
Rule “Content” with a-l
Had the rules changed on me? No!
Thanks for playing!

16. Summary Judgments -- TRCP 166a
= Mini-trials on the documents
Harsh remedy so strict procedural protocols = due process
“No oral testimony will be received at the hearing.” TRCP 166a(c)

17. SJ -- Notice of Hearing/Submission
21 days notice = absolute
“except on leave of court” – very rare exception
Response, any objections and our evidence = due “not later than 21 days prior to the day of the hearing”

18. Objections – “I’ll have the usual”
Lack of 21 days notice
Defective affidavit -- Rule 166a(f) even gives us the form!!
Personal knowledge
Facts as would be admissible in evidence
“Shall show affirmatively that the affiant is competent to testify”

19. Objections – “I’ll have the usual”
Defective affidavit evidence usually looks lazy.
Doesn’t bother to deal with hearsay
Probably no certified copy
Probably didn’t authenticate documents w/ a business record affidavit
Doesn’t bother to reveal personal knowledge and/or glosses over
Attempts to get their lay person client to testify to legal conclusions

20. Objections – “I’ll have the usual”
Defective affidavit evidence usually looks like
If attorneys fee affidavit, slapped together
Doesn’t often bother to prove up reasonableness and necessity
Doesn’t often bother to prove up the Anderson factors

21. When this happens . . .
. . . The trial court has no reason to know that if she rules your way, she would be right, AND you’ll have her back on appeal.
The path of least resistance is to deny SJ
TCs care about their stats and being reversed
The atty who slaps things together in SJ is setting the TC up for failure

22. The reasonableness of a fee is determined by considering all relevant circumstances relating to the representation, including:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

23. My issue on SJ appeal -- my client not represented by counsel in TC
Whether $500,000 a month in attorney's fees is so reasonable on its face that no evidence of the Andersen factors is required for a trial court to grant summary judgment awarding the fees.

24. Summary Judgment Order on Objections
See Appendix I for a form
Prepare an Order on Objections to SJ Evidence
If the Judge declined to sustain your good objections, then that ruling is “preserved for appeal”

25. ___________________________________________________________________
ORDER ON OBJECTIONS
TO SUMMARY JUDGMENT MOTIONS AND EVIDENCE OF WILLIAM ROME
After considering the motions for summary judgment of Applicant William Rome, the pleadings, the responses, the affidavits, and other evidence on file, the Court makes the following rulings on Jason Price’s objections to Applicant Rome’s summary judgments and accompanying evidence:
Objection 1(a): SUSTAINED/OVERRULED ___________________________
Objection 1(b)(i): SUSTAINED/OVERRULED __________________________
Objection 1(b)(ii): SUSTAINED/OVERRULED __________________________

26. Preserving Error at Trial
Watch the court reporter to make sure it’s being taken down – get a record!
Did your boss actually get a ruling from the judge on an important issue?

27. Post-Trial Preservation of Error
Until you are in the appellate court, all deadlines key off the
Date of the Judgment

28. Non-Jury Trials
If you are judgment winner, you’ll want to help the court
draft the judgment
prepare findings of fact and conclusions of law

29. Non-Jury Trials If you are the judgment loser, you’ll have deadlines:
Request for FOF/COL due 20 days after judgment
You can file a motion for new trial (MNT) within 30 days, but don’t have to (unless it was a default judgment)
Series of deadlines if the court does not prepare FOF/COL

30. Jury Trials
If you’re the judgment winner, you’ll be preparing a proposed judgment, and filing a motion for judgment on the verdict
If you’re the judgment loser, you have a series of deadlines to try to get the court to change its mind, or preserve error for appeal
When are these deadlines?

31. Post-Trial Preservation of Error
Until you are in the appellate court, all deadlines key off the
Date of the Judgment

32. Jury Trials Post verdict motions:
Must file a MNT for many jury complaints
within 30 days
This is an inflexible, unforgiving deadline
Other Post Judgment Motions
Motion JNOV
Motion to Disregard Jury Findings
No fixed deadlines, but common sense  should be filed before judgment, but for sure by 30 days after judgment

33. Appeal Preparations
If a motion for new trial filed, your appellate timetable goes from 30 to 90 days
30 to 90 days from when??

34. Post-Trial Preservation of Error
Until you are in the appellate court, all deadlines key off the
Date of the Judgment

35. Appeal Preparation/Deadlines
NOA due Day 30/90
Unless accelerated appeal, then Day 20
Request the Record “at or before the time for perfecting appeal”

36. The Record Clerk’s Record [CR]
Reporter’s Record [RR] (Don’t call it a transcript!)
If you are appellant, your job to designate the record
If you are appellee, you will cross-file your own request afterward
Request in writing, file w/ district clerk, and “make arrangements” to pay for it
If you “make arrangements” the burden shifts to clerk/court reporter

37. In the Appellate Court
Once you file your NOA in the trial court, the district clerk will forward to appropriate court of appeals
In Houston, that is initially the 1st or 14th Courts of Appeals – (you could be equalized to another CA)
This is when you pay your filing fee in the CA

38. In the Appellate Court
Your appellate timetable is suspended once you are in the CA
Starts ticking again when the last of the record is filed
Appellant’s Brief in regular appeal will be due 30 days afterwards
Appellee’s 30 days

39. In the Appellate Court Motions for Extension of Time TRAP 10.5
Get out of jail free card
Relate “the facts relied on to reasonably explain the need for an extension”
Don’t say “we’re busy.” Be specific “Unanticipated”
Don’t let your boss look like an amateur by opposing METs

40. Thanks!
I used to be one of you. So I know who makes the trains run on time!!