Identifying, Developing & Presenting Game-Changing Appellate Points in the Trial Court
to Achieve Winning Settlements or Winning Legal Rulings

INTRODUCTION

The purpose of this paper is to apply some lessons learned about identifying, developing, and presenting potentially game-changing appellate points in the trial court. These lessons were  derived from the author’s 40 years of practicing appellate law, in trial courts as well as appellate courts, and 33 years of teaching judicial advocacy, advanced insurance appeals, intentional torts, and Texas Supreme Court jurisprudence.

For more than three decades, the author has had the privilege of teaching law students at both the University of Texas’ and the University of Houston’s law schools. Beginning in 1990, the author co-taught appellate advocacy classes alongside a number of the most brilliant appellate judges and practitioners in Texas. Each year, these classes focused on a different class problem – a real-world, but hypothetical, fact pattern presenting a roughly equally matched jurisprudential fight on both sides. The class problems were drawn from current issues in the areas of insurance coverage, fraud, gross negligence, and punitive/exemplary damages. The students were required to write three briefs and to develop and present three successive oral arguments to the court of appeals and then the Texas Supreme Court.

Through that extensive experience co-teaching with real-world judges, the author saw those judges in action – evaluating legal arguments in briefs and in oral arguments. More specifically, the author was focused on observing: (i) what considerations judges use to decide between the competing proposed legal rules offered by each side and (ii) what argument strategies appeared to work with judges and which approaches did not. Being able to study judicial decision-making and advocacy from this up-close and personal vantage point for over 30 years proved to be a central foundation of the author’s views about the best advocacy for judges.

Based on the lessons learned from all that teaching experience, as well as from the author’s own appellate practice in trial courts as well as appellate courts, the author developed the advocacy method that he taught and continues to practice. In that method, the key to great judicial advocacy, whether presented in an appellate court or a trial court, is the lawyer’s identification, development, and presentation (“IDP”) of a proposed legal ruling and supporting argument based not only on controlling jurisprudence but also on the key principles and values underlying that jurisprudence. It is not based on preserving as much error as possible at trial and trying to find a winner later, on appeal.

Specifically, the key is to find a de novo legal ruling that is a true potential game-changer – i.e., a proposed legal ruling and its supporting arguments that strike at the core or foundation of the opponent’s case. For example, the proposed de novo legal ruling could be the judge’s interpretation of a key contract provision or even of a previously unappreciated contract right or obligation, challenging whether a novel twist on the duty or reliance element of a cause of action or defense should be adopted or rejected, raising a novel jurisdictional issue, objections regarding the necessity or validity of specific expert testimony, or some other foundational issue. Only by identifying and then fully developing a truly significant jurisprudential ruling, and its underlying jurisprudential principles and values, can appellate advocates predictably set their case on a course to either a favorable settlement or discretionary review by and ultimate success in the Texas Supreme Court.

Moreover, again at the trial level, another primary goal of the IDP process is to educate opposing counsel, in addition to the trial judge, about the proposed game-changing legal ruling and supporting arguments. Specifically a key goal of the IDP process can and should be to show all stakeholders that there is now a game-changing appellate issue which if adopted by the judge(s) would present a potentially intolerable risk to their business or multi-year investment in their case. The ideal is to drive home the message that there is a singular appellate argument that creates an existential threat to the case. This is how the prospect of a future appeal, when identified, developed and presented at trial can create immediate settlement motivation and can lead to reasonable, face-saving settlements for all parties. Thus, the goal of the IDP process for game changing legal arguments is not merely to “punch your ticket” to the Texas Supreme Court in the future, but ideally to leverage the existential appellate risk into an immediate resolution through favorable settlement. The author thus hopes that the bar, clients, and the bench will find this IDP approach interesting and potentially useful.

I.          Identifying, Developing and Presenting Game-Changing Appellate Points in the Trial Court to Alter the Trajectory of Litigation and to Promote Settlement, Even Before Appeal.

“It’s not the customer’s job to know what they want.”

“People don’t know what they want until you show it to them.”

            – Steve Jobs

Appellate rulings at the very end of the litigation are, by definition, game-changers. And winning an appellate decision that renders judgment – especially in a court of last resort – always beats a big jury verdict or any other result in the trial court. But a great appellate argument can also be a game-changer long before the appeal starts or the litigation ends, and a game-changer can even help settle the case early.

The question for appellate lawyers is how to find a method or process to reliably find those game-changing legal arguments that can result in those final appellate wins. What approaches work? What approaches do not work?

In Texas, the court of last resort is the Texas Supreme Court – which has discretionary appellate jurisdiction. So those questions suggest yet one more question: what appellate argument or approach is most likely to catch the attention of the Texas Supreme Court?

The thesis of this paper proposes that identifying, developing, and presenting jurisprudentially significant arguments in the trial court is the best, most reliable way to ultimately catch the attention of the Texas Supreme Court.

Moreover, these game-changing arguments are the same legal arguments that represent existential threats to the lawsuits themselves. By threatening to capture the attention of the Texas Supreme Court, these game-changing legal arguments convert profitable cases into vehicles to change substantive Texas law. With this transformation, the lawyers prosecuting these cases could face the risk of losing the entirety of their investments in these lawsuits. Moreover, the clients could walk away empty-handed from their own emotional investments in these cases, and, unlike the lawyers, the clients cannot make it up on the next lawsuit.

This is what makes it possible for an appellate lawyer to help contingency counsel to immediately realize the fruits of those potential final wins while the case is still in the trial court. This is because an appellate lawyer can carefully and methodically develop a compelling, game-changing appellate argument for both the trial court and opposing counsel. Thus, either (1) the trial court can give you that favorable legal ruling long before the appeal ends, or (2) the opposing counsel can agree to a settlement that works for you.

A.        Merely Preserving Countless Potential Appellate Points Does Not Create Winning Appellate Points.

Unfortunately, the all too normal and expected approach for appellate counsel at trial is to preserve all potential error, as to every possible mistake by the trial court, no matter how inconsequential, to see what can be developed later, on appeal and in the appellate briefing. This approach effectively postpones to the time of the appeal any careful judgment about whether a legal issue can be developed and presented to become a potential winner. Many moons ago, the author used to take this approach, and it is entirely understandable.

1.         Fear of Waiver Does Not Justify the “Preserve Everything” Approach.

The “Preserve Everything” approach is primarily driven by the understandable fear of waiver. While that concern is clearly legitimate, it is worth noting that both the Rules and the Texas Supreme Court strongly disfavor wavier. See, e.g., Tex. R. App. P. 38.9 & 44.3; Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“[A]ppellate courts should reach the merits of an appeal whenever reasonably possible.”).

Another reason that appellate lawyers take the “preserve everything” approach at trial is because of the notion that the key points on appeal are unpredictable and subjective, potentially making it more desirable to give the eventual appellate lawyer as much flexibility as possible on appeal. To the contrary, as this paper will attempt to show, identifying potential legal arguments that can be developed into an argument presentation that has a legitimate shot at reversing a judgment is far more predictable and objectively identifiable – i.e., it can be identified and carefully developed tin to an argument presentation that produce a big win on appeal or be leveraged into a great settlement.

2.         The “Preserve Everything” Approach in the Trial Court Can Create Losing Appellate Points.

The main problem with the “preserve everything” approach is that it is designed to create a lot of inconsequential appellate points. The system is designed, of course, to eliminate inconsequential appellate points, partially through the harmful error rule. By law, a harmless appellate point cannot reverse a judgment. See Tex. R. App. P. 44.1(a). In fact, the Texas Supreme Court has explained that the harmless-error rule gives appellate judges “much less discretion” than trial judges. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 211 (Tex. 2009).

In Texas, error is not inherently reversible and most appellate points never result in reversal. Cf. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009) (holding that it is the appellant’s burden to show that the error was harmful).

There are also other problems with the “preserve everything” approach. For example, preserving a multitude of tangential issues will not provide an objective basis to settle. Instead, the goal should be to identify and preserve the objectively realistic winning issues that can potentially convince the other side band their counsel that it is in everyone’s interest to settle – rather than face the prospect of a multi-year process of adjudicating a legitimate, jurisprudentially significant legal question. Preserving multiple, narrow appellate issues does not strike that kind of fear into anyone.

Moreover, attempting to preserve error on every possible mistake by the trial court is disruptive to the trial and can annoy both the judge and the jury – putting the jury verdict at even greater risk.

B.        The Alternative Is Creating Legitimate Appellate Risk in the Trial Court by Identifying a Game-Changing, Jurisprudentially Significant Legal Issue.

There is a better model: identify the game-changing legal issues as early as possible and develop and refine them relentlessly. Finally, repeatedly present the new game-changing legal argument, one the record, in different contexts, both before and during trial. The goal is that, by careful development and repetition, the “silver bullet” appellate issue captures the full attention of the trial court, and eventually the appellate courts, and the opposition.

Ultimately, key legal issues are the only ones that will actually merit serious consideration by the appellate courts. Otherwise, the appellate points will be summarily denied and the appeal will be over quickly. This is especially true in the Texas Supreme Court. By definition, the Texas Supreme Court can only hear an appeal that “presents a question of law that is important to the jurisprudence of the state.” Tex. Gov’t Code § 22.001(a).

In other words, the key to this appellate strategy is to identify the game-changing legal issue insightfully, developing it creatively and with the best judgment, and presenting it clearly, concisely and compellingly. To show the effect of a fully developed, compelling, and jurisprudentially important appellate point, this paper will next show how the different participants in the trial court may perceive appellate risk.

1.         A Winning Appellate Issue in the Trial Court Creates Multiple Risks to the Opponent – Potential Reversal, Retrial, Delay, and Lost Investments.

For many parties, the typical dynamic in raising a big dollar claims might go something like this: after the accident or commercial misfortune, the potential claimant talks to a close attorney, maybe a trusted family friend, or maybe someone from the church. That first attorney sees the potential for a possible lawsuit and signs up the claimant – and then may look for a big-name law firm to give the case the resources it needs to realize its full potential. If the case has a large damages profile, those big-name firms will then sometimes compete with each other for the case, including by making hopeful claims about what they might be able to achieve with the case.

As a result of these conversations and negotiations, the firm that wins the bidding war for the case then proceeds to make the promised investments. These are cash expenditures – hard-earned dollars spent to develop the case. Although they are sunk costs, those investments create a baseline for any future settlement discussions – they need to be recouped. Moreover, the initial impressions and hopeful quasi-representations that were conveyed to the claimant end up forming the basis for the counsel’s own expectations and create yet another baseline for any settlement discussions.

A vague possibility of a future appeal on multiple narrow issues, hardly intrudes into these settlement expectations. At most, they reinforce the fact that there is always a chance that a fluke issue could derail a case.

But a fully developed and , correctly packaged appellate argument, presented at multiple turns, can interrupt this dynamic and change everyone’s settlement expectations. Most importantly, the possibility of a complete loss (including loss of the sunk costs) becomes a realistic possibility – or, worse, the case could become the next landmark ruling from the Texas Supreme Court. Another part of the new dynamic is the risk of additional delay. With the development of a jurisprudentially significant appellate theme, the risk of a protracted appellate fight over a legitimate, as-yet-unresolved legal question is high.

2.         A Winning Appellate Issue in the Trial Court Creates Business Risks for Defendants that the Courts Will Invalidate Business Models or Frequently Used Contract Provisions.

A different dynamic exists from the perspective of the defendant – but with at least a few aspects that create similar vulnerabilities to a well-developed, jurisprudentially significant legal issue from the plaintiff’s side.

To look at just one possible scenario, consider a defendant that believes that it has not done anything wrong. This attitude is especially prevalent for professionals, for whom settling nuisance lawsuits creates its own set of problems, i.e., the settlements might be seen by the public (and insurance companies) as a tacit admission of past wrongdoing. So a motivated defendant may initially be willing to spend the time and money necessary to vindicate his actions – whatever the costs.

But what if the conduct has been subject to censure in other states? What if the Restatement – but not yet Texas – has recognized a cause of action for that conduct? The Texas Supreme Court will presumably want to keep Texas’ jurisprudence in the mainstream, even if it means expanding liability on the rare occasion.

By identifying a jurisprudentially significant, well-developed legal argument, the plaintiff’s appellate lawyer – just like a defense-oriented appellate lawyer – can posture the case so that it has significant future impacts outside of the litigation. Ideally, an appellate issue from the perspective of a plaintiff will threaten the defendant’s business model or even an entire industry’s use of a standard contract provision or an entrenched business approach.

Plus, the possibility of keeping a large verdict in a single case, through the use of a game-changing legal argument – invalidating an affirmative defense – can create a very similar effect on the defendants and their willingness to settle.

3.         A Winning Appellate Issue Creates the Risk for the Trial Court that the Case Will Need to Be Retried.

The final stakeholder is the trial court itself. A critical reason to go through the IDP process and fully develop a significant legal issue is not just to educate the opposing side but also to educate the judge about the material potential appellate risks.

The reason is not simply to make the trial court aware that it could get reversed. In the author’s experience, including hearing from trial judges at CLE presentations, trial judges are not particularly concerned with getting reversed. This is an institutional re-disposition: getting reversed comes with the territory.

Instead, trial judges are concerned with being ordered to try a case a second time, because trial courts – like the public – tend to hold jury verdicts in high regard. Cf. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009) (“Parties and the public generally expect that a trial followed by a jury verdict will close the trial process.”).

In addition, a second trial is a waste of state resources and, more importantly, a waste of the judge’s and jurors’ time. Therefore, identifying key legal issues that create the risk of a retrial carry more weight with trial judges than ordinary legal arguments.

Therefore, for example, when a trial court rejects a limitations argument, the trial judge will not be overly concerned about reversal. More than likely, any reversal would just end the litigation. See, e.g., PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. Partnership, 146 S.W.3d 79, 92-98 (Tex. 2004) (rendering judgment on limitations as to one of the plaintiff’s warranty claims, despite the jury verdict).

In contrast, declining to submit an important issue to the jury creates a high likelihood that, in the event of a reversal, everyone will need to return for another trial. See, e.g., id. at 98-100 (remanding a different warranty claim for a new trial because a critical issue was not submitted to the jury).

C.        Developing a Game-Changing Appellate Argument in the Trial Court Allows the Argument to be Tested and Refined.

Another reason to fully develop a significant legal issue is that it allows for a game-changing legal issue to be fully tested and refined. The IDP process should be considered as iterative. When one iteration is presented, the opposing side will counter with their own argument and possibly evidence, and the trial court may ask its own questions and will make a ruling. If the ruling is unfavorable, it presents an opportunity to identify the reasons why, develop a counter through additional evidence or different angles, and present a refined argument.

The iterative process thus 1) allows for probing of the opposing sides’ strengths and weaknesses, forcing them to be cognizant of the realities of their position with the realization that the issue will not go away, 2) allows the argument to be fully developed for appeal, without the inconvenience of wishing there was better testimony on a critical matter, and 3) provides multiple opportunities to practice the argument with a real-world audience.

An iterative process can of course not be followed for every possible identifiable issue, because it is in no one’s best interests to re-fight every losing battle. The process should be reserved for the game-changing appellate issues, which is why they must be identified as early as possible.

D.        Fully Developing a Game-Changing Appellate Argument in the Trial Court Is the Most Effective Way to Impact Opponents and Trial Courts.

While it is impossible to capture the complexity of individual reactions to jurisprudentially significant legal rulings, the above sketch should create some basis to predict how parties and trial courts will respond to different appellate arguments.

At the broadest level, opposing counsel will have very little response to legal issues preserved with a “preserve everything” approach. In contrast, opposing counsel should be enticed to settle with a legitimate game-changing appellate point. This is especially true with repetition and enhanced development, which create the chance to “educate” opposing counsel about the legal issue and how it could alter both the trajectory of the case and the trajectory of the law, which would impact not just the current case but future cases.

Similarly, if the legal issue is tailored towards achieving a reversal and remand for a new trial, the trial court is much more likely to respond favorably to the argument.

With the right appellate argument, the trial court could potentially help the parties to settle, merely by acknowledging in open court but outside the hearing of the jury the power of the game-changing legal argument and observing that it is being seriously considered. Perhaps the trial court could aid in the settlement process more directly, such as by ordering the parties to mediate, in light of the game-changing legal argument. The trial court could also simply emphasize how much the trial court wants to avoid trying the case twice and seek input from both parties on how to avoid that outcome.

II.        Identifying Winning Appellate Legal Arguments.

Making this appellate strategy work begins with identifying these game-changing appellate arguments in the first place. While much of this comes from subjective experience, some objective analysis of the process of identifying game-changing legal issues is possible.

This paper will next look at some subjective components of this “identification” process. Then this paper will review some of the Texas Supreme Court’s jurisprudence, to confirm of some of the more objectively and historically examples in which legal topics have drawn the Court’s repeated attention.

A.        Subjective Analysis: Looking Behind the Issues to Find the Jurisprudential Principles and Values at Work.

A jurisprudentially important, game-changing appellate argument is rarely found in a book or CLE paper. Instead, finding the right issue is necessarily tied to the novel legal and factual situation presented by any specific case. As all trial and appellate lawyers know and appreciate, each case is unique.

The potential winning legal issue is not primarily academic. Abstract legal philosophy plays little role, if any, in identifying the right issue. Instead, to be a game-changer, the legal question must be practical. For example, it could affect issues that have industry-wide effect or call into question a business model.

At the same time, the “silver bullet” legal issue ideally has aspects that are new. While the issue must also be grounded in jurisprudence and precedent, the ideal issue would cause opposing counsel to believe that not only will they potentially lose their case on appeal, but that their case will become the catalyst for a significant change in the law. In this way, the potential loss on appeal will become part of the legacy of all counsel on the case. Moreover, with a game-changing appellate argument, the appeal will threaten the viability of future cases.

Identifying a subjectively important and interesting legal issue also requires determining which areas of the Texas Supreme Court’s jurisprudence can be considered undeveloped. In those undeveloped “crevices” of the law, taking a deep dive and putting a sustained focus on the issues could cause the Court to make a significant change or refinement in the law.

Identifying jurisprudentially significant, game-changing arguments also requires an analysis of the particular jurisprudential principles and values that underlying the proposed legal ruling. As will be discussed in further detail below, in virtually every closely contested legal question, there is a clash of competing jurisprudential principles and values. But, again, this is not an academic exercise. In selecting the appellate issue, the appellate lawyer must pick an issue that is ultimately a winner, i.e., one in which the advocate can marshal more numerous and more persuasive jurisprudential principles and values in favor of his or her proposed legal rule.

B.        Objective Analysis: Surveying Examples of Winning Appellate Points that Have Shaped the Texas Supreme Court’s Jurisprudence.

As for an objective analysis, over the past three decades, the Texas Supreme Court has identified a number of issues that the Court considers critically important to ensuring that Texas trials are fair, and not one-sided or distorted. For example, in the early 1990s, the Court flatly outlawed Mary Carter agreements. See Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex. 1992). The Court also adopted strict standards to ensure that death penalty sanctions are not used to adjudicate the merits of a case. See TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991).

The Texas Supreme Court’s jurisprudence does the same implicitly as a whole. It effectively functions as a roadmap of issues that are perennially of interest to the Texas Supreme Court and thus jurisprudentially important. To take advantage of this roadmap, there is no substitute for having a thorough working knowledge of the Texas Supreme Court’s jurisprudence, especially if the working knowledge was obtained by firsthand participation in shaping the Court’s jurisprudence, as some of the examples below will attempt to demonstrate.

In addition to objectively identifying the recurring topics that are of interest to the Court, this portion of the paper will show that the Texas Supreme Court has also shown itself open to considering strong, new compelling appellate arguments and to make landmark rulings in response to those arguments. In this way, the Texas Supreme Court has effectively empowered appellate lawyers to have a decisive impact on litigation even before the appellate process begins.

1.         Interpretation of Frequently Used Contract Provisions.

In contract cases, a game-changing legal ruling can often turn on the court’s de novo interpretation a critical interpretation of a key contract provision. This can be game-changing not only to the immediate lawsuit, but also to a company’s entire business model if the defendant regularly uses the target key contract provision in its agreements.

a.         A Reasonable Contract Interpretation Must Harmonize All Parts of a Contract.

The Texas Supreme Court has repeatedly emphasized its “entire-contract” approach to contract interpretation: “we must examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); see also Frost Nat. Bank v. L & F Distributors, Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (“We consider the entire writing ….”) (citing Webster).

The role of ambiguity in the Texas Supreme Court’s contract-interpretation procedure is underappreciated. If there are more than two reasonable interpretations, “the contract is ambiguous, creating a fact issue on the parties’ intent.” Webster, 128 S.W.3d at 229. This would appear to make it relatively easy, under the Texas Supreme Court’s jurisprudence, to create a jury issue for the interpretation of a contract provision. The truth is otherwise.

But a well-developed, game-changing argument under these standards could also attempt to invalidate as unreasonable the other side’s proposed interpretation of the contract – thus establishing the appellate advocate’s interpretation as the only reasonable interpretation (left). In short, the game-changing legal argument can seek to establish that the other side’s interpretation is not reasonable because it is not compatible with some other provision in the contract, for example, by rendering that other contract provision meaningless surplusage. Cf. id.

These arguments invoke the Texas Supreme Court’s long-established interest in setting out an “entire-contract” approach to contract interpretation and thus, objectively, they would be jurisprudentially important to the Court, based on the Court’s established track record.

2.         Legal Rulings with Industry-Wide Impact.

A related issue that is highly likely to create jurisprudentially important appellate point is the interpretation of common contract provisions that appear frequently in the marketplace. These provisions are especially prone to affect an entire industry or business model.

a.         The Pollution Exclusion.

One noteworthy example is litigation over the meaning of the standard “pollution exclusion” found in many commercial general liability (CGL) insurance policies. By itself, the importance of this standard provision to both CGL insurers and policyholders inherently makes any serious appellate point about the interpretation of the pollution exclusion a good candidate for review by the Texas Supreme Court.

b.         The Texas Supreme Court’s Goal of Uniformity in Contract Interpretation.

That is especially true because, as the Texas Supreme Court has explained in a case that the author litigated, state courts across the United States seek to achieve “uniformity in construing insurance provisions, especially where, as here, the contract provisions at issue are identical across the jurisdictions.” National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 522 (Tex. 1995) (interpreting the “absolute” pollution exclusion).

The Texas Supreme Court’s desire to achieve uniformity gives future appellate advocates an entire avenue to find legal issues of legitimate interest to the Court. In short, appellate advocates can find ways in which the opponent’s interpretations of an insurance policy would contradict precedent from other parts of the country. The salient appellate theme would be that the Texas jurisprudence about the interpretation of a standard insurance provision should be in the mainstream of the national jurisprudence. Cf. Barcelo v. Elliott, 923 S.W.2d 575, 580 (Tex. 1996) (“[I]n recent years the Court has sought to align itself with the mainstream of American jurisprudence ….”) (Cornyn, J., dissenting).

3.         Critical or Recurring Procedural Issues, such as Expert Testimony.

As the author can describe based on personal experience, another recurring area of concern for the Texas Supreme Court is expert testimony. While expert qualifications and the reliability of expert testimony are the most obvious examples, one perennially important issue is when does Texas law require expert testimony – such as to establish the standard of care. See, e.g., FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004); Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).

a.         “Post Hoc” Reasoning Is No Substitute for Expert Testimony.

The author was the lead Supreme Court advocate in Guevara v. Ferrer, 247 S.W.3d 662, 663 (Tex. 2007). In Guevara, the Texas Supreme Court addressed whether expert testimony was necessary to determine that an automobile accident caused the claimed medical expenses, which were over $1 million.

The court of appeals had concluded that the “sequence of events” was sufficient for a lay jury to find causation, without any help from experts. Ferrer v. Guevara, 192 S.W.3d 39, 47-48 (Tex. App. – El Paso 2005), rev’d, 247 S.W.3d 662 (Tex. 2007). That appeared to be a classic logical fallacy called “post hoc, ergo prompter hoc”: merely because one event follows another in time does not prove that the first event caused the second.

That framing of the expert-related legal issue induced the Texas Supreme Court to grant the petition for review and clarify its jurisprudence about the extent that lay testimony about a sequence of events – with safeguards – can be sufficient to show causation and the extent to which expert testimony is necessary. See Guevara v. Ferrer, 247 S.W.3d at 666-70.

4.         Creating or Rejecting New Defenses.

Another jurisprudentially significant topic that the author can describe from personal experience is the legal validity of various defenses. Creating or rejecting defenses – and defining the parameters of those defenses – regularly catches the attention of the Texas Supreme Court.

a.         Disclaimers of Reliance.

For example, in 1997, the Texas Supreme Court recognized that a disclaimer of reliance is a settlement agreement between two sophisticated parties can defeat a fraudulent inducement claim. See Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171, 177-81 (Tex. 1997). Following Schlumberger, the Texas Supreme Court repeatedly addressed the topic of contractual disclaimers, continuously refining its analysis of this defense. See, e.g., Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 331-36 (Tex. 2011).

b.         “As Is” Contract Provisions.

Similarly, the Texas Supreme Court held in 1995 that an “as is” clause in a real estate purchase agreement defeated the causation element of claims for fraud, negligence, violations of the DTPA, and breach of the duty of good faith and fair dealing when the building was later found to contain asbestos. See Prudential Ins. Co. v. Jefferson Assocs., 896 S.W.2d 156, 160-63 (Tex. 1995).

c.         The Learned Intermediary Doctrine.

In 2012, the author participated in the Texas Supreme Court’s further refinement of the “learned intermediary doctrine.” See Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 154-59 (Tex. 2012). Under that doctrine, pharmaceutical manufacturers are required to warn doctors – instead of directly warning patients – about the dangers and side effects of prescription medications: “Because patients can obtain prescription drugs only through their prescribing physician …, the learned intermediary doctrine applies and generally limits the drug manufacturer’s duty to warn to the prescribing physician.” Id. at 159.

The Supreme Court clarified that the learned intermediary doctrine was not an affirmative defense. Id. at 164-66. Nevertheless, the doctrine defeated a variety of failure-to-warn claims, including strict products liability and fraud by omission. Id. at 168-73.

Importantly, the author had previously had success in urging the Texas Supreme Court to initially embrace “learned intermediary” defense years earlier. See Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 591 (Tex. 1986) (“In some situations, courts have recognized that a warning to an intermediary fulfills a supplier’s duty to warn ultimate consumers. For example, when a drug manufacturer properly warns a prescribing physician of the dangerous propensities of its product, the manufacturer is excused from warning each patient who receives the drug.”).

This firsthand participation in shaping the Texas Supreme Court’s jurisprudence allowed counsel the insight that the Texas Supreme Court, with a completely different makeup and perspective, would consider the “learned intermediary” defense important to the Court’s own historical jurisprudence and grant review in the subsequent Hamilton case to formally adopt and redefine the defense.

5.         Creating or Rejecting New Causes of Action.

Many of the Texas Supreme Court’s most high-profile decisions have addressed the related issue of whether to recognize new causes of action. See, e.g., Boyles v. Kerr, 855 S.W.2d 593, 595-96 (Tex. 1993) (rejecting a cause of action for negligent infliction of emotional distress in the face of an inflammatory fact pattern).

a.         Creating New Duties.

The development of new claims and duties is a significant area of concern for the Court, as shown by even a partial list of cases where the Court has either recognized or rejected new claims or duties:

• Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 148-52 (Tex. 2022).
• Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 403-13 (Tex. 2009).
• Ritchie v. Rupe, 443 S.W.3d 856, 877-91 (Tex. 2014).
• Twyman v. Twyman, 855 S.W.2d 619, 621-24 (Tex. 1993).
• Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 524-27 (Tex. 1990).

b.         Extending the Duty of Reasonable Care to New Situations.

The Texas Supreme Court’s interest extends to the nearly identical issue of whether to recognize an ordinary duty of care (i.e., a duty not to act negligently) in unique factual situations:

• HNMC, Inc. v. Chan, 683 S.W.3d 373, 380-85 (Tex. 2024).
• Houston Area Safety Council, Inc. v. Mendez, 671 S.W.3d 580, 582-90 (Tex. 2023).
• AEP Texas Cent. Co. v. Arredondo, 612 S.W.3d 289, 294-99 (Tex. 2020).
• Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503-08 (Tex. 2017).
• Boerjan v. Rodriguez, 436 S.W.3d 307, 310-11 (Tex. 2014).
• Wilson v. Tex. Parks & Wildlife Dept., 8 S.W.3d 634, 635-36 (Tex. 1999).
• Ranger County Mut. Ins. Co. v. Guin, 723 S.W.2d 656, 657-60 (Tex. 1987).

Therefore, a perennial good candidate for a game-changing appellate argument is attacking whether the plaintiff’s alleged cause of action is recognized in Texas or whether a negligence duty exists based on the facts of the case.

This promises to be a continuing topic of interest to the Texas Supreme Court. The Court has flagged the question of whether Texas recognizes several causes of action that are commonly asserted, including: (i) negligent hiring, (ii) negligent training, (iii) negligent retention, or (iv) negligent supervision. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 2010).

III.       Developing Winning Appellate Legal Arguments.

After identifying the potential game-changing legal argument, the next step is developing and refining the argument. This is the painstaking process of objectively challenging and advancing the argument, both to make it a winner and to give it an important impact on the state’s jurisprudence.

A.        Preliminary Step: Marshalling Precedent in Favor of the Game-Changing Legal Argument.

Preliminarily, this process involves marshalling all of the Texas Supreme Court’s precedent to show that the argument is important and that other jurisdictions have also seen the validity of the proposed new approach. For example, this step could involve conducting a 50-state survey of the question to show that Texas jurisprudence, in this particular respect, is out of step with mainstream jurisprudence. Another resource is the Restatement, which instantly lends some (preliminary) credibility to the argument, if the Restatement acknowledges the point.

B.        Advanced Step: Identifying the Underlying Jurisprudential Principles and Values at Work.

Most importantly, developing the game-changing legal argument involves identifying the jurisprudential principles and values at play. In almost every closely contested legal issue, there are valid and important jurisprudential values supporting both sides.

Occasionally, the Texas Supreme Court has expressly acknowledged the competing principles and values on both sides of a hotly contested issue. For example, when the Texas Supreme Court first adopted the discovery rule – in a case where surgeons left a sponge inside the patient’s body – the Court forthrightly identified the competing principles and values:

In determining the proper event which starts the period of limitation running in an action of this nature, we are confronted with conflicting policies. The purpose of statutes of limitations is to compel the assertion of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rest is yet fresh in the minds of the parties or their witnesses…. On the other hand, the nature of negligence actions of this type is such that it is often difficult, if not impossible, to discover that a foreign object has been left within the body within the statutory period of limitation.

Gaddis v. Smith, 417 S.W.2d 577, 578 (Tex. 1967).

Another example arose in Schlumberger, the Court acknowledge the conflicting jurisprudential principles – finality of settlements vs. fraud vitiating everything it touches.

Moreover, the best advocates do not stop at showing how the principles and values line up for or against a new, proposed rule. The goal is to take a deeper dive – and show how the principles and values should be given different weight based on the circumstances of the case. In Gaddis, as a simple example, the value of ensuring that the plaintiff had a real chance to prosecute the medical malpractice claim was much higher because of the dramatic nature of leaving a medical tool inside of a human body.

Another aspect of developing the game-changing legal argument includes, again, knowing your court and the individual judges. Different courts and judges naturally assign different weight to different principles and values. For example, the current Texas Supreme Court places a preeminent weight on private parties’ freedom to contract. Energy Transfer Partners, L.P. v. Enter. Prods. Partners, L.P., 593 S.W.3d 732, 738 (Tex. 2020) (“We reinforce this public policy virtually every Court Term.”).

Perhaps the most advanced version of developing a winning argument is uncovering the most subtle or hidden underlying principles and values that animate the current jurisprudence and showing how the proposed new rule further advances those unarticulated principles and values.

C.        Final Step: Refining and Retrenching the Game-Changing Legal Argument.

As a practical matter, the development of a game-changing legal argument involves anticipating the best arguments that can be made by opposing counsel, fully and frankly coming to grips with those contrary arguments, and refining the argument to avoid air respond to those legitimate challenges to the proposed rule. This process forces the appellate advocate to refine the game-changing argument to overcome its weaknesses, recast its strengths, and retrench.

The goal of this retrenchment process is to win over the courts. Thus the advocate must forthrightly grapple with the courts’ expected most difficult concerns, the hardest questions, natural skepticism, and reflexive opposition to any new interpretation of the jurisprudence. Possibly, the biggest obstacle to a game-changing legal argument is the inherent resistance of the courts to anything new. The temptation to give up may be overwhelming, but the only way to prevail is persistence, which comes from conviction that the new, game-changing legal argument is not only aligned with the Texas Supreme Court’s jurisprudence but actually advances and clarifies its jurisprudence.

IV.       Presenting Winning Appellate Legal Arguments in the Trial Court.

The final step is presenting the game-changing legal argument in the trial court. The goal is to persuade both the trial court and opposing counsel of its potential to resolve the lawsuit, either by ultimate adjudication or by settlement.

This approach to presenting a game-changing legal argument includes, but goes beyond, mere error preservation to avoid waiver. Instead, to succeed, the appellate issue must be “fully preserved” – meaning that the point needs memorable phrasing in the briefing and articulation to the trial court, supporting trial testimony, and effective briefing that conveys that the advocate has undertaken the necessary legal refinements to make the theory a future winner in the Texas Supreme Court. Only with this combination will the ultimate pitch to the trial court be clear, concise, and compelling (CCC).

By undertaking this CCC process in the trial court, at a minimum, the appellate advocate convinces the future appellate courts that the trial court had a full and fair opportunity to consider the argument based on the Supreme Court’s precedent on the issue and the proposed new distinctions based on that precedent.

More importantly, this CCC process is the only way to change perceptions of what the case is worth to opposing counsel. As discussed above, these perceptions were built into the very fabric of the case, from the referring attorney to the client. Changing these perceptions with a legal argument is difficult and cannot be done with a “preserve everything” approach. Only an objective potential game-changing winner can break through these built-in expectations and change the existing dynamic of the particular case.

This next portion of the paper will discuss the role of different “vehicles” to bring home the persuasiveness and dispositive effect of a single overriding legal argument. This will include analysis of how these briefing opportunities help preserve error, both formally (to avoid waiver) and fully (to win over the audience).

A.        Motions for Summary Judgment.

A motion for summary judgment is the traditional way to stake out a game-changing legal argument and show both opposing counsel and the trial court that the breakthrough legal argument will ultimately defeat the lawsuit on appeal.

Of course, the possibility of winning a motion for summary judgment based on a significant jurisprudential principle is also a great reason for filing one. In fact, many of the biggest landmark legal rulings from the Texas Supreme Court arose from motions for summary judgment that were initially granted. See, e.g., Union Pump Co. v. Allbritton, 898 S.W.2d 773 (Tex. 1995) (addressing remote causation); Perry v. S.N., 973 S.W.2d 301 (Tex. 1998) (addressing negligence per se); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 199 (Tex. 1995) (addressing premises liability); Gaddis v. Smith, 417 S.W.2d 577 (Tex. 1967) (adopting the discovery rule in Texas); Childs v. Haussecker, 974 S.W.2d 31, 34 (Tex. 1998) (refining the operation of the discovery rule in Texas).

However, when counsel perceives that the trial court is predisposed to deny the potential motion for summary judgment, the dynamic is distinctly different. In those situations some advocates may decide not to file one. At that point, the leading reason to proceed with filing a motion for summary judgment is because it gives the movant the clearest opportunity to undertake the CCC process. In other words, the motion for summary judgment is a shot across the bow.

The main reason that this is true is because filing a motion for summary judgment, only to see it denied, does not preserve error. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) (“The general rule is that a denial of a summary judgment is not reviewable on appeal.”). One of the main reasons for this is because after a full trial, the summary judgment record becomes obsolete. See Ortiz v. Jordan, 562 U.S. 180, 184 (2011) (“Once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary-judgment motion.”).

Notably, there are some indications that, in the future, summary judgment might preserve some error – but that is not predictable with any certainty. See HNMC, Inc. v. Chan, 683 S.W.3d 373, 380 n.1 (Tex. 2024) (indicating that “the Supreme Court of the United States recently held that the denial of summary judgment on purely legal grounds may be challenged on appeal.”) (citing Dupree v. Younger, 598 U.S. 729, 735-36 (2023)).

Another reason that some advocates may not file is because the deck is effectively stacked against winning a summary judgment, with every factual inference construed against the movant and all facts against the movant “taken as true.” Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In addition, “[t]he provisions of Rule 166a, including its notice requirements, are strictly construed because summary judgment is a harsh remedy.” Chadderdon v. Blaschke, 988 S.W.2d 387, 388 (Tex. App. – Houston [1st Dist.] 1999, no pet.).

However, the stacked deck can also be viewed as an opportunity to see how a game-changing legal argument performs under a worst-case scenario. The feedback gained can then be used to identify and develop the evidence and arguments that would have been helpful, but were procedurally-unavailable.

In light of the many reasons that may exist not to file a motion for summary judgment, the most important benefit of proceeding to file a motion for summary judgment may be that it is the best way to fully articulate the game-changing legal argument and explain why the nonmovant will eventually lose on appeal.

B.        Rule 166 Motions.

One of the increasingly popular ways to raise pure legal issues is the use of Rule 166(g) motions. See Tex. R. Civ. P. 166(g). Rule 166 generally covers pre-trial conferences, and Rule 166(g) specifically empowers the trial court to rule on unresolved “legal matters” before trial. Id.

Perhaps the best example of a traditional use of Rule 166(g) in a pre-trial conference is when the parties disagree about a question of contract interpretation – a pure legal issue that usually needs to be resolved by the court before the case can be submitted to the jury.

But Rule 166(g) is not limited to resolving preliminary legal questions to facilitate trial. The Texas Supreme Court has confirmed that Rule 166(g) authorizes the trial court to make legal rulings that would assist in the disposition of the case: “When a Rule 166(g) order disposes of claims in this fashion, the order is akin to a summary judgment or directed verdict, and review is de novo.” JPMorgan Chase Bank, N.A. v. Orca Assets G.P., 546 S.W.3d 648, 653 (Tex. 2018).

In fact, this use of Rule 166(g) has been clear for a long time, as the Texas Supreme Court explained in 1949: “The purpose of [Rule 166] is to simplify and shorten the trial and limit ‘the issues for trial to those not disposed of by admissions or agreements of counsel.’” Provident Life & Acc. Ins. Co. v. Hazlitt, 147 Tex. 426, 216 S.W.2d 805, 807 (1949). “Of course, no controverted issues of fact could be adjudicated at [a pre-trial] conference, but orders could be entered disposing of issues which are founded upon admitted or undisputed facts.” Id.

Therefore, Rule 166(g) gives the appellate advocate one more chance to either prevail on the game-changing legal argument or at least go through the CCC process before trial.

C.        Special Exceptions.

Another vehicle for undertaking the CCC process for the game-changing legal argument is filing special exceptions. Special exceptions are necessary to avoid the waiver of defects in the pleadings. See Tex. R. Civ. P. 90. In addition, “[w]hen a party fails to specially except, courts should construe the pleadings liberally in favor of the pleader.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).

The value of special exceptions for preserving error, however, is extremely limited. “Cases are rarely reversed on the sole ground that a special exception to a petition should have been sustained ….” McGraw v. Albracht, 16 S.W.2d 1112, 1113 (Tex. Civ. App. – Eastland 1929, no writ). One reason that special exceptions rarely create reversable error is because trial courts have such broad discretion in ruling on special exceptions. Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007).

Instead, the overriding reason to file special exceptions is to reinforce your appellate argument – and to show that you gave the trial court every opportunity to address the error and fix it.

D.        Trial Themes & Evidence.

Ultimately, absent winning a dispositive legal motion, counsel will need to preserve the game-changing appellate argument at trial. Traditionally, this includes motions for directed verdict and deploying the argument in jury charge objections and tenders.

But creating leverage with an insightful, jurisprudentially important appellate point should also be bolstered by incorporating it into both witness testimony and the jury argument – so that the full trial reinforces the prospective appeal on the game-changing legal issue.

These two additional steps are important to both (1) creating settlement leverage and (2) preserving error. As to creating leverage, lawsuits tend to reach a fever pitch at trial, and highlighting the game-winning argument at trial is sometimes the only way to get the attention of the relevant party decision-makers. Not surprisingly, many if not most big cases settle at the courthouse..

As to the preservation of error, some appellate points require testimony and jury argument. For example, the Texas Supreme Court made a jurisprudentially important holding in 2005 that parties are generally not entitled to two different “inferential rebuttal” instructions for the same conduct. See Dillard v. Texas Elec. Co-op., 157 S.W.3d 429, 432-34 (Tex. 2005). As the Dillard Court explained, inferential rebuttal instructions allow a party to blame events beyond his or her control, including blaming a non-party. See id. at 432.

Without going through the unique facts of the Dillard case, the key take-away is that the defendants’ failure to actually make a jury argument at trial doomed their request to reverse the case on the trial court’s refusal to give a second inferential rebuttal instruction to the jury. Id. at 433.

In short, the defendants wanted to blame two different non-parties for the accident at issue and wanted the trial judge to give two, different inferential rebuttal instructions – one for each of the non-parties. But, at trial, the defendants had ignored one of the two non-parties. So there was simply no reason to give the second inferential rebuttal instruction.

Dillard thus serves as an example that the game-changing legal argument needs to be fully reflected in the trial presentation in every way possible.

V.        Conclusion.

As mentioned above, this paper is based on personal lessons learned from teaching and practicing appellate advocacy for decades with some of the best appellate judges in Texas. Hopefully, it will inspire more appellate advocates to move away from a model of “preserving everything” at trial and postponing until the appeal the determination of which legal issues are consequential.

Hopefully this paper will inspire more appellate advocates to instead get involved before trial, to identify an appellate legal argument that has objective, game-changing and jurisprudence advancing potential. By doing this heavy lifting on the front end, developing and refining the game changing legal argument to withstand the strongest possible attacks from opposing counsel or from the trial judge, and presenting it clearly, concisely, and compellingly, all stakeholders can profit, whether by settlement or by successful adjudication. Effectively carrying out this process should make it realistic to achieve great results for your clients not only when the case eventually is on appeal, but immediately, while it is still in the trial court, through favorable rulings or favorable settlements.