What Are The Odds? Appeals in the Panther City Court and Big D!
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1 What Are The Odds? Appeals in the Panther City Court and Big D! Presenters: Steven K. Hayes Law Office of Steven K. Hayes Stephanie Dooley Nelson Carrington Coleman October 6, 2011 Joint Appellate Seminar Sponsored by the Dallas Bar Association Appellate Law Section and Tarrant County Bar Association Appellate Law Section
2 Fort Worth Court of Appeals The Fort Worth Court: Who Are Those Guys? SLIDE 2
3 Fort Worth Court of Appeals Seven (7) Justices Two Panels of 3 Justices Each Panels Change Every 6 Weeks 1 Administrative Justice Only 2 justices with less than 4 years experience Pool Dice SLIDE 3
4 Fort Worth Court of Appeals So What Are My Chances of Success? SLIDE 4
5 Fort Worth Court of Appeals Sources: Lynne Liberato and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS 25 TH ADVANCED CIVIL APPELLATE SEMINAR (2011) Hon. Murray B. Cohen and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS 17 TH ADVANCED CIVIL APPELLATE SEMINAR (2003) SLIDE 5
6 Fort Worth Court of Appeals Sources: Lynne Liberato and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS 25 TH ADVANCED CIVIL APPELLATE SEMINAR (2011) Hon. Murray B. Cohen and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS 17 TH ADVANCED CIVIL APPELLATE SEMINAR (2003) SLIDE 6
7 Fort Worth Court of Appeals Sources: Lynne Liberato and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS 25 TH ADVANCED CIVIL APPELLATE SEMINAR (2011) Hon. Murray B. Cohen and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS 17 TH ADVANCED CIVIL APPELLATE SEMINAR (2003) SLIDE 7
8 Fort Worth Court of Appeals Sources: Lynne Liberato and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS 25 TH ADVANCED CIVIL APPELLATE SEMINAR (2011) Hon. Murray B. Cohen and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS 17 TH ADVANCED CIVIL APPELLATE SEMINAR (2003) SLIDE 8
9 Fort Worth Court of Appeals Rehearings: FYE 8/31/ Rehearing Motions in Civil Cases: Filed 54 Granted 6 (11.1%) Den./Withdrawn 7 (13%) Source: Steven K. Hayes, et al, Rehearing Practice in The Courts of Appeal: They Heard You The First Time, and Other Rules of Thumb STATE BAR OF TEXAS 24 TH ANNUAL ADVANCED CIVIL APPELLATE SEMINAR (2010) SLIDE 9
10 Fort Worth Court of Appeals Fort Worth Court - Mandamus: FYE 8/31/ and 2011* (*approx. 10% sample). Source: Mandamus Before the Second District Court of Appeals: An Analysis of Mandamus Rulings in 2003 Through 2005, by Steven K. Hayes. Copyright SLIDE 10
11 Fort Worth Court of Appeals Fort Worth Court - Mandamus: FYE 8/31/ Within thirty days of filing, the Court dismissed 76% of petitions (80% dismissed w/i two weeks in 2011 sample) If the Second Court of Appeals Requested a Response, the Grant Rate Increases to Nearly One in Three (One of Two (maybe 100%), in 2011 sample). When the Second Court of Appeals Entered a Stay Order on a Discovery-Oriented Mandamus Proceeding, It Denies the Mandamus Less Than Half the Time. If petition is pending: (1) 30 days post-filing, grant rate = 34%; (2) 40 days post-filing, grant rate 40%; (3) 50+ days post-filing=grant rate>50%. SLIDE 11
12 Dallas Court of Appeals Fifth District Court of Appeals Dallas SLIDE 12
13 Dallas Court of Appeals Court Overview: 13 Justices Four panels of 3 justices each Panels are reconstituted every 9 weeks Two panels sit for oral argument on Monday and Wednesday; the other two on Tuesday and Thursday One motions panel sits for one year One mandamus panel rotates every month SLIDE 13
14 Dallas Court of Appeals New Cases filed in FYE Total Cases Disposed 909 SLIDE 14
15 Dallas Court of Appeals Civil Cases Disposed SLIDE 15
16 Dallas Court of Appeals Reverse/Affirmance Rates FYE 2009 FYE 2011 Affirmed Affirmed in part Reversed in part Reversed SLIDE 16
17 Dallas Court of Appeals Civil Cases Dismissed SLIDE 17
18 Dallas Court of Appeals Official OCA Statistics Affirm 19% Affirm In Part/ Reverse in Part 1% Reverse 7% Dismiss 44% Otherwise Disposed 27% Consolidation or Voids 2% SLIDE 18
19 70 % Dallas Court of Appeals 2011 Affirm/Reverse Rates for Select Civil Cases (Civil Cases Decided on the Merits Excluding Juvenile, Family Law, and Civil Forfeiture) Affirm 68% 60 % 50 % 40 % 30 % 20 % 10 % Affirm in Part / Reverse in Part 7 % Reverse and Remand 12 % Reverse and Render 10 % Otherwise Disposed 3 % SLIDE 19
20 Dallas Court of Appeals 2011 Reversal Rates Jury Trials 34 % FYE 2011 Sources: Lynne Liberato and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS ADVANCED CIVIL APPELLATE PRACTICE COURSE (2011) SLIDE 20
21 Dallas Court of Appeals 2011 Reversal Rates Bench Trials 30 % FYE 2011 Sources: Lynne Liberato and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS ADVANCED CIVIL APPELLATE PRACTICE COURSE (2011) SLIDE 21
22 Dallas Court of Appeals 2011 Reversal Rates Summary Judgments 26 % FYE 2011 Sources: Lynne Liberato and Kent Rutter, Why Courts Reverse, STATE BAR OF TEXAS ADVANCED CIVIL APPELLATE PRACTICE COURSE (2011) SLIDE 22
23 Dallas Court of Appeals Motions for Rehearing FYE 2009 Of 132 Motions for Rehearing Filed: 10 Were Granted (7.5%) 10 Were Denied But Resulted in a New Opinion (7.5%) Source: Cliffie Wesson, Rehearing Practice in the Court of Appeals: They Heard You the First Time and Other Rules of Thumb; State Bar of Texas 24 th Annual Advanced Civil Appellate Practice Course (2010). SLIDE 23
24 Dallas Court of Appeals Petitions for Writ of Mandamus FYE 2011 Granted: 14 Denied: 152 Dismissed: 65 Granted in Part/Denied in Part: 1 Dismissed in Part/Denied in Part: 1 SLIDE 24
25 Dallas Court of Appeals Odds of Getting Mandamus? Based on 2011 numbers: 9% of mandamus petitions decided on the merits were granted in whole or in part. SLIDE 25
26 Fort Worth and Dallas Courts of Appeals So How Quickly Do Cases Move? SLIDE 26
27 Fort Worth Court of Appeals Fort Worth Court - Civil Cases Pending by Age: FYE 8/31/ SLIDE 27
28 Fort Worth Court of Appeals Fort Worth Court - How Long Have My Cases Taken? Avg. Filing to Disposition (mos.) Avg. Submission to Disposition (mos.) SLIDE 28
29 Fort Worth Court of Appeals Fort Worth Court - % of Civil Cases Pending less than 1 yr. post-submission FYE 8/31/ SLIDE 29
30 Fort Worth Court of Appeals Oral Argument Before the 2 nd Court It s a Court of Hot Panels SLIDE 30
31 Fort Worth Court of Appeals Oral Argument Before the 2 nd Court 80-90% of the time, you will be questioned. What happened at least half the time: Before questions started: Appellants had 2.5 minutes to open, Appellees 3 minutes. Court asked Appellants 8+ questions, Appellees 6+ questions Appellants had no questions in the last minute, Appellees had no questions in the last two minutes. Try to predict/prepare for the questions you will get. Source: Oral Argument Before the Second District Court of Appeals: The Rules, and an Analysis of 57 Cases, by Steven K. Hayes. Copyright SLIDE 31
32 Dallas Court of Appeals SLIDE 32
33 Dallas Court of Appeals Timing Issues FYE 2011 OCA Statistics Average Time Between Filing and Disposition: 8.2 Months Average Time Between Submission and Disposition: 1.2 Months SLIDE 33
34 Dallas Court of Appeals Review of Civil Cases Decided on the Merits (Excluding Juvenile, Family Law, and Civil Forfeiture) Average Time Between Submission and Disposition 94 Days SLIDE 34
35 Dallas Court of Appeals Safe Answer In FYE 2011, 97.7% of cases were under submission for less than one year. SLIDE 35
36 Dallas and Fort Worth Courts of Appeals Chances the Courts Will Turn Around The Prior Ruling 40 % 30 % Fort Worth Dallas 20 % 10 % Appeal Rehearing Mandamus Petitions for Review (Texas Supreme Court) SLIDE 36
37 Dallas and Fort Worth Courts of Appeals Those Percentages Reflect the Systemic Challenges of Appeal Appellate justices and trial judges: deal with the same record; deal with the same law; were trained in the same school of thought. Trial judges rulings get certain benefits of the doubt: discretionary rulings; preservation of error rules; evidence sufficiency standards, etc. SLIDE 37
38 Dallas and Fort Worth Courts of Appeals Whatcha Doin, Where Ya Goin, Can I Come Along? SLIDE 38
39 Thank You! What Are The Odds? Appeals in the Panther City Court and Big D! Presenters: Steven K. Hayes Law Office of Steven K. Hayes Stephanie Dooley Nelson Carrington Coleman October 6, 2011 Joint Appellate Seminar Sponsored by the Dallas Bar Association Appellate Law Section and Tarrant County Bar Association Appellate Law Section
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