Appellate Practice & Procedure

Class #7:

Rehearing and Higher Court Review

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™

Introduction

You have received a decision from the appellate court.

It goes your way—or not—and you have notified the

client of the basic outcome

What are the next steps?

What factors should you consider in advising your client

what, if anything, to do next?

Next Steps for Losing Party

Do nothing and let the decision become final

Motion for rehearing (or reconsideration)

Seek higher court review:•State supreme court or equivalent

•U.S. Supreme Court

Next Steps for Winning Party

Wait and see what the losing party does

Consider responding to whatever the losing party files,

wherever they file it

Motion for Rehearing

Why bring one?•To correct problems with the appellate court’s opinion or judgment

•To try and change the result

•Possibly to preserve error for higher court review

•For en banc, grounds usually must involve a need for uniformity in decisions

(the deciding court’s and others)

Don’t simply rehash old arguments

Downsides:•At least some additional cost to the client, depending on fee arrangement

•Could delay conclusion significantly

Opposing a Motion for Rehearing

Sometimes the right response is no response•When local practice is that court will request a response if desired

•Avoids unnecessary expense

As appropriate, point out that the motion raises nothing

the court of appeals hasn’t seen (and rejected) before

Make arguments in opposition to the movant’s

Higher Court Review?

What are the chances review will be accepted?•Look at any available statistics

•Consider recent trends

•Other cases pending with similar issues?

From the higher court’s perspective:•Discretionary review versus review as a matter of right

•Is there a dissenting opinion?

•Do the lower courts’ opinions conflict?

•Statutory construction

•Importance of the issue

•Error correction

Higher Court Review?

Additional costs•By this point, client has already been through a full-blown appeal

•Does it make sense to go on?

•If client loses, potential for additional post-judgment interest and (if awarded)

appellate attorneys’ fees

Even if successful, resolution can take years

Basic Strategy for Petitioner

As petitioner, can you make a good case for review?

If you can, in light of the considerations outlined above,

your chances are increased

But always ask whether moving forward is in the client’s

best interest

Economics usually the biggest consideration

Basic Strategy for Respondent

If discretionary, show why the court should pass:•The lower court got it right

•The case really isn’t important to anyone but the parties

•The court of appeals’ decision is limited to its facts

•There is no real conflict among the lower courts

•The higher court isn’t in the business of error correction

Otherwise, much the same strategy as an appellee

Next Time(our last class)

Appellate Practice & Procedure

Class #8:

Tips and Strategies for Marketing an

Appellate Practice

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™