The Appellate Lawyer: Heading Off the Runaway Verdict and, If It Hits, Reversing the Fortunes on Appeal -
September 19, 2008

An appellate practitioner will explain the procedures involved with filing original proceedings for mandamus and interlocutory appeals, and will discuss the pros and cons of using original proceedings to challenge various pre-trial rulings (e.g., discovery rulings involving privilege, the claim file, reserve information), which types of pre-trial rulings are not subject to mandamus review and why, and the pros and cons of interlocutory appeals on various issues that can affect the insured (e.g., government defendants, media defendants, health care providers, out-of-state defendants).

Using both a trial lawyer and an appellate lawyer, we will explore strategies for immediately responding to unexpectedly large verdicts (excess of policy limits) against your insureds, obtaining a quick inventory of potential appeal issues, the pros and cons of post-verdict mediation, Stowers implications, and perfecting the appeal.

In this panel discussion, three appellate lawyers will examine how a case procedurally moves through the 14 intermediate courts of appeals in Texas, how a case procedurally moves through the Texas Supreme Court, and appeal statistics from the Texas Office of Court Administration (length of appeal, rates of affirmance or reversal, types of appeals taken, etc.) that can affect the insured’s decision whether to appeal.

A seasoned appellate practitioner will discuss strategies for getting the Texas Supreme Court interested in your insured’s case, how to determine your “target audience” at the Court, some of the “hot topics” that have interested the high Court in recent years (e.g., insurance and bad faith, statutory interpretation, experts, trial procedure, and punitive damages), and recent Texas Supreme Court cases involving insurance, subrogation, and policy interpretation issues.

An appellate practitioner will review the statutes and rules applicable to suspending execution on a judgment against your insured pending appeal, the procedures and strategy for posting a supersedeas bond or cash deposit, coverage issues that arise in superseding an excess judgment, ensuring your surety is approved for use by the courts, and the procedures for seeking a reduction in the amount of security needed to suspend execution based on the insured’s or insurer’s financial situation.

Using both a trial lawyer and an appellate lawyer, we will examine how the appellate lawyer can enhance the trial lawyer’s preparation for trial and presentation to the jury, preserve trial error for any future appeal, handle legal issues relating to directed verdict and the jury charge so that the trial lawyer can focus on presentation of the insured’s case and final arguments, and other benefits.

An experienced insurance litigator will highlight potential hurdles and traps that can arise in coverage and bad faith litigation, bifurcation of the coverage issue from the bad faith case, establishing the actual facts for or against indemnity, and preserving the issues for the appeal.

A seasoned appellate practitioner will briefly describe the goals of oral argument before the intermediate courts of appeals and the Texas Supreme Court. Appellate lawyers will then present a mock oral argument in a real insurance coverage case to a mock court of appeals, followed by a question-and-answer session for attendees.