In today’s order list, the Texas Supreme Court broke some new ground in how it interacts with the executive branch.

SOLICITOR GENERAL INVITED TO FILE BRIEF:

08‑0465

THE STATE OF TEXAS v. $281,420.00 IN UNITED STATES CURRENCY; from Hidalgo County; 13th district (13‑06‑00158‑CV, _ SW3d _, 04‑03‑08)

The Solicitor General is invited to file a brief in this case expressing the views of the State.

This is a “CVSG” — a Call for the Views of the Solicitor General. The U.S. Supreme Court takes advantage of this procedure about a dozen times per term, asking if the United States thinks that review should be granted. Because this invitation is made in cases in which the United States is not itself a party, the Court gains the benefit of an (ideally) neutral perspective on whether the petition is the right vehicle to address a particular question of federal law.

The Texas Supreme Court has echoed the U.S Supreme Court’s language in framing today’s order.

Read more details

Yesterday, the Texas Supreme Court resolved two motions to participate in oral argument by amici — granting one request and denying the other.

In Gail Ashley v. Doris D. Hawkins, No. 07-0572 (DB), the Court granted the State of Texas’s unopposed motion to participate in oral argument as amicus curiae. The order indicated that the State’s five minutes of argument time was taken out of the Respondent’s original twenty minutes, leaving a split of 20 minutes for the Petitioner, 15 for the Respondent, and 5 for the State.

Meanwhile, in In re United Services Automobile Association, No. 0871 (DB), the Court denied a “motion to expand argument time” and a “motion to participate in oral argument” also filed by the State.

As I mentioned in my recent post “When can amici expect to get oral argument time?”, Texas practice requires both a party’s consent and that the consenting party share its time. I mentioned that the Texas Supreme Court has, on occasion, expanded the overall time for argument — what I called “an awkward way to proceed.”

Yesterday’s order again signals that the Court is loath to give more time to parties who are unwilling to share. The order list contained this explanation:

Pursuant to Texas Rule of Appellate Procedure 59.6, upon motion to the Court and with a party’s consent, the Court will grant amicus curiae leave to share up to five minutes of the twenty minutes allotted to that party for oral argument.

That puts a little flesh onto the bones of Rule 59.6, which merely says:

With leave of court obtained before the argument and with a party’s consent, an amicus may share allotted time with that party. Otherwise, counsel for amicus curiae may not argue.

The Court has clarified that, with a motion and a party’s consent, “the Court will grant amicus curiae leave to share up to five minutes of the twenty minutes allotted…” (emphases mine) (( Update 12/9: On Friday, after the Court initially denied permission for the amicus to argue, a revised motion was filed that no longer sought the “expansion” of time. The Court granted that motion and the State appeared as amicus at oral argument this morning. ))

The Court mostly likely did not intend to limit its discretion to deny a motion to participate, which it surely can do. (( This discretion was why I suggested in my earlier post that an amicus should have something different to say than the party they are supporting. If the Texas Supreme Court truly does not intend to exercise discretion over whether particular amici can appear, then you can safely ignore my previous post. Then again, why would you want to appear at oral argument if you didn’t have something to say that warranted the Court’s attention? )) But it has made plain that it does not expect any amicus to need more than five minutes and that it does not expect parties to seek extra time to compensate.

The practice tip remains: If you have a helpful amicus, consider giving them five minutes of your time.

A few days ago, the Texas Supreme Court requested full briefing in State of Texas v. Public Utility Commission, No. 08-0421 (DocketDB). Regular readers of the blog might have noticed this case appear as one of the “Recent Briefing Requests” in the sidebar.

Today, CenterPoint Energy released a press release about the status of the case. It mentioned the company’s earlier release about the filing of a petition in the case and then added:

Although the Supreme Court has not indicated whether or not it will grant review of the lower court’s decision, the Court’s request for full briefing on the merits will allow the parties to more fully explain their positions to the Court. Under the Court’s order, each party seeking review will submit its brief, and the other parties will be entitled to submit responses to those briefs. Any decision by the Court to grant or accept review is discretionary with the Court, and there is no prescribed timeline for action beyond the briefing.

I quote this rather dry paragraph to compliment it. The Texas Supreme Court’s process of requesting two stages of briefing before deciding whether to grant review is (perhaps) unique. (( I’m not aware of other examples. If you know of any, I’d appreciate hearing about them. )) At the least, it is different than the U.S. Supreme Court model with which more readers of the financial press might be familiar. This paragraph does a good job of explaining that the financial press should not get too excited about news that briefing is requested.

We, as appellate lawyers, like to try to read the tea leaves of what a particular briefing request might mean. We talk about the statistics — what percentage of cases get a briefing request; what percentage of those are granted or become “submarine docket” cases. Or we venture guesses as to what questions might have sparked the Court’s curiosity.

Thinking through these possibilities in detail can be very valuable. It can help shape the arguments or even inform settlement talks.

But what can you be certain of when the Court requests full briefing? The surest answer might the simple one given in that press release, namely, that it is another chance to make your best case to the Court.

How do you explain the Texas Supreme Court’s two-step briefing process to your clients?

That’s a question I have been asked about the Texas Supreme Court. The answer is, “When you can convince the Court that you are going to add some value that for whatever reason the principal party cannot.”

In federal practice, as discussed more in this post today from SCOTUSblog, the general rule of thumb is that the federal Solicitor General’s office always gets oral argument time when they request it and that private litigants almost never do. (( When state solicitors request divided time, the answer is “sometimes.” States may have an interest in a statute that is meaningful to the Court, as when the State of Texas argued as an amicus in a suit between two private parties asking the Court to find a Texas statute was preempted. ))

In Texas practice, the pattern is a little less clear. When I was at the Texas SG’s office, we would often (but not always) get argument time when we requested it. Private amici seemed to have a harder time getting oral argument time. But, in my experience, they rarely articulated how they could offer value to the Court if they appeared at argument, highlighting the different perspective on the case that they as amicus could bring to the podium.

A major complication for potential amici in Texas practice is Texas Rule of Appellate Procedure 59.6:

59.6. Argument by Amicus Curiae

With leave of court obtained before the argument and with a party’s consent, an amicus may share allotted time with that party. Otherwise, counsel for amicus curiae may not argue.

This sharply limits the Court’s flexibility in accommodating amicus arguments. Each side begins with only 20 minutes of time, and counsel, especially first-time counsel, are often reluctant to yield 5 minutes of time to a helpful amicus. ((This is true even when that amicus is the State. Some litigants would not consent to have the State appear alongside them at oral argument. In federal practice, that would be an unbelievably dumb move. In state practice, it is merely a dumb one.)) What the Court has, on occasion, done is to actually expand the time for argument so that each side has, say, 25 minutes, so that a reluctant party’s counsel would not actually lose any of their time if they consented. Needless to say, this has been a very awkward way to proceed.

The U.S. Supreme Court has the power to divide the time between the party and the amicus as it sees fit. (( In one fairly recent case, the Court actually gave the United States appearing as amicus even more time than it had requested. )) The Texas Supreme Court is more limited in its flexibility. Still, counsel do their clients no favors by being intransigent about keeping an extra 5 minutes of argument time instead of consenting to have a particularly helpful amicus appear alongside them.

I came across a website called “Typography for Lawyers,” that, you guessed it, is about typography in legal documents. It’s a nicely put-together site by a lawyer who has an art degree from Harvard and was a type designer before law school.

I know what you’re thinking — “Typography?! I set the word processor for Times New Roman and forget it.” (( If you have the newest version of Microsoft Word, you might be in for an unpleasant surprise. Even that venerable word processor’s default font is no longer Times New Roman. It’s instead a font called “Cambria” that did not exist before 2004. ))

Do your readers feel the same way? Do they?

Justice Don Willett wrote an op-ed piece on Wednesday that was published by the Austin American-Statesman online. The occasion was Constitution Day, and Justice Willett wrote about the recent Heller decision about the Second Amendment and — of potentially much broader significance to practitioners — his role advising ConSource.

ConSource is an online resource that bills itself as “the free online resource of the Founders’ constitutional documents” From the few minutes that I have spent poking around on the site, it’s pretty impressive. I’ve spent enough weekends poring through the Federalist Papers and convention notes in book form to see that this could be very helpful. If you want to pitch an original intent argument, this could be a very valuable resource for you.

If you’re doing similar research on the Texas Constitution, you may want to check out the Debates in the Texas Constitutional Convention of 1875, which covers the framing of the current Texas Constitution (ratified in 1876). It’s not as lovingly annotated as its federal equivalents, but it does shed at least a little light on some of the more mysterious parts of our constitution.

Programming note: When the year-end orders come down tomorrow morning, I’ll be giving a presentation at the Civil Trial CLE in Dallas. I’ll post about them when I can.

In the lead up to tomorrow’s orders, I was tempted to write a post that covered some of the Court’s longest-pending petitions (presumed to be on the “submarine docket”), as well as some of its cases argued and submitted in previous terms. Like others, I am expecting the Court to issue a significant number of opinions. But I didn’t want to write a post that sounded like I was trying to predict tomorrow’s orders.

Instead, here are a few thoughts about the statistics about the Court that may dominate the Fall campaign.

Mark Twain understood the essence of statistics at least as well as my professors did. What you choose to measure is far more important than the measurement you get. (As always, Twain said it better.)

When people have criticized the Court’s handling of its docket, that criticism has highlighted the age of the cases the Court has actually decided, but not those still pending on the docket. What does that mean? Texas Watch took a set of recently issued opinions and worked backwards to determine how long those cases had been pending. That methodology creates a strange incentive — it would penalize the Court for deciding its oldest cases (which raise the average time) and reward it for deciding its newest (which lower the average time), which is not the behavior that those critics profess to seek.

The official Office of Court Administration statistics, by contrast, track the total number of petitions carried from year to year, including the number of submitted cases (i.e., those that have been heard at oral argument but not yet decided).

What incentives does that measurement give the Court? The key is the Court’s “submarine docket,” in which the Court never formally grants argument but instead holds the case to see if the Justices can agree on an opinion. The OCA statistics don’t penalize the Court for carrying those cases over year to year because those petitions look just like every other petition on the docket. By contrast, the OCA statistics do penalize the argued cases for being carried year to year.

A Court that was just trying to pad its stats at the end of the fiscal year would therefore issue opinions in as many argued cases as it could, placing emphasis where possible on recent cases rather than very old ones.

The Court, one hopes, is much less obsessed by its own statistics than the “watch” groups, judicial campaigns, and the like. But it will still be interesting to see which cases come down, by which Justices, and how the Court’s year-end push affects its statistics going into the fall in this election year.

I recently received a note from Blake Hawthorne, the Clerk of the Court, who thought my readers might want to know about some new resources on the Court’s website.

Oral argument archives

A few years ago, the Court switched from recording its arguments on cassette tapes to a new method of digital recording. That new method has helped the Court post the arguments on its website, usually the same day as the argument, in an easy-to-download MP3 form suitable for your iPod enjoyment (for jogging, driving to work, or sleeping on planes, as the mood strikes).

The older archives, however, remained trapped in audio tapes that were inconvenient for the clerk’s office and for anyone who had the misfortune of trying to find a cassette player in the mid-2000s to listen to those tapes. (I eventually found a walkman I had used in high school.)

But now the Court has digitized most of its old arguments, thanks to an equipment loan from West Publishing. The archive of old arguments as far back as 1990 has been processed and is available on this page. These arguments are now available on demand and no longer require the “nominal fee” that was mentioned every oral argument day for many years.

As Court’s website notes, the older recordings may have some flaws that the new ones do not. At least some of those are my fault, along with those of the other law clerks through the years, who used to be tasked with physically flipping over the cassette tape at the right moment. My apologies. (And my apologies to any readers at the other extreme who may be wondering “what’s a cassette tape?”)

Coming soon: Argument transcripts

Blake also mentioned an upcoming project for this fall that I’m particularly excited about. The Court plans to post searchable oral argument transcripts, in addition to the audio and video formats that it now posts. Those transcripts will be provided by West, which will also assist with transcribing some older cases (going back to around 2000).

While I’m not looking forward to reading transcripts of my own arguments, this will surely be a valuable tool for those who can skim transcripts faster than they can listen to audio or watch video.

What does West get out of the arrangement? I’m told that West will have the Court’s blessing to sell a searchable version of the video versions of the Court’s oral arguments, linked to these transcripts. So far as I know, the rest of us still cannot download those videos directly but can only watch them “streamed” from the St. Mary’s website.