Trial lawyers and appellate lawyers have different skill sets that compliment each other’s practices. But some trial lawyers feel equally at home in both the trial and appellate courts. In this episode, Todd Smith and Jody Sanders talk to their first trial attorney guest, Carlos Soltero, about his experiences in both courts. Carlos offers his perspective as a trial lawyer on appellate practice, revealing how he handles his own appeals, where most of his work comes from, and how he is doing in the current pandemic. He talks the different roles he plays and shares some advice on dealing with jury charges, collaborative work, attorney fees, and more. Carlos also offers a peek at his book, Latinos and American Law, where he sheds light on the different ways the legal system has affected the Hispanic, Latino, and Mexican-American communities and individuals.
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We have with us a local Austin attorney, Carlos Soltero, who I happen to know well from being in and around Austin, the Austin Bar and other ways. Carlos, welcome to the show.
Thank you for having me. It’s a pleasure to be with you.
You are, I believe, the first trial work-focused attorney we’ve had on the show. We had Reagan Simpson on. Reagan has done more than his share of trial work over the years. We’ve had some who have dabbled in trial court work here and there maybe earlier in their careers, but I don’t think we’ve had anyone quite in your position. I know you primarily as a trial lawyer. We want to talk to you about your practice generally. We’re going to talk about the main issue that we want to cover is trial lawyers who handle their own appeals. I happen to know that you do a fair amount of that, and have had quite a bit of success with that. We set the stage here. How about you tell the readers a little bit about yourself, where you come from, your background? Maybe we can talk about where you went to school because you’re going to make us all feel inferior when you talk about that.
I don’t know about any of that. Without trial lawyers, you appellate lawyers wouldn’t have so much to write about. I’m glad that you included and invited us in your great podcast series. I’m at my firm, Soltero Sapire Murrell. I have been practicing in Austin for about 20 years. Before that, I practiced in Houston in a variety of firms. I started out at Vinson & Elkins for a short period of time. I was at Smyser Kaplan and then moved over here. In Austin, I started out at McGinnis Lochridge. I was there for about 17 years or so. I went to Cleveland Terrazas before starting this firm. I went to law school at Yale. I grew up mostly in the Houston area, but I was born in San Juan, Puerto Rico. My mom’s family is from the border, Eagle Pass.
I didn’t know about the Puerto Rico connection because I thought your family was from the Valley.
My mom’s family is not from the Valley, it’s from Eagle Pass. It is a border town. When I grew up going there all the time as a child, we would walk over across the border, even as young children just like you would cross the neighborhood here or something. Different times. I wouldn’t do that now. My dad is Puerto Rican. I was born in Puerto Rico. I was there until I was six. You’ll hear me say this in some deposition or something, but Spanish is my first language. English is my second language. Sometimes when witnesses don’t understand my question, maybe it’s because of the language barrier.
I thought you were going to tell me that you’ll take depositions in Spanish.
I will not do that, but it’s sometimes helpful to hear both the witness in Spanish and the interpretation. Most of the time, the interpreters do a good job doing something very difficult. Occasionally, there are material differences. One time that stands out in my mind was that the translated version was gun, but the witness said shotgun. I clarified that because that can be a slightly different detail that happened to matter in that particular circumstance.
What a nice skill to have in our part of the country and as a litigator. I can only imagine. I’m jealous because I can barely string together two sentences in English, my first language. You’ve been at some great firms and done a lot of interesting things. One thing I happen to know about you is you’re board certified in Personal Injury Law. What led you to get that certification?
I started out in the Tort Section at V&E. Then when I left Smyser Kaplan, they had opened their firm and they had a fairly healthy docket of mostly plaintiff’s side, personal injury cases, in addition to the med mal defense work that they had excellent hospital and other med mal clients. Those kinds of cases in the mid-‘90s were still being tried regularly. I was fortunate enough to have had a lot of trial experience first year and otherwise, not only with them. When I was over at McGinnis, I was still trying cases fairly regularly. I try to get at least one or so a year. I was at some point eligible for the Board Certification in Personal Injury. That’s been a big part of my practice. Different degrees at different times, but it’s still been an important part of the practice for some time. I don’t do that predominantly or it’s not an overwhelming part of my practice, but it’s something that I consistently have done.
What are you focusing on now as far as the kinds of cases that you’re handling as a trial lawyer?
It varies from time. I’ve found a cluster of different things throughout time. To answer your question directly, I’m still doing a lot of trade secret employment, non-compete things. I still have a selective amount of personal injury work, as I like to say, people fighting over money, civil litigation of different types. At times, I found that some issues get more and more traction. I’m sure you have found that too and some of the other folks who practice. For instance, for a while I had a lot of international type of cases because that happened to be coming up a lot. Other times, some other types of financial cases or whatever are more prevalent, but right now it’s the non-compete and the general mix.
Where do you find most of your cases come from? Are you getting a lot of work through referrals? I don’t see your firm advertising on billboards. That’s not the practice that you’re focusing on these days. Where does most of the work come from?
Overwhelmingly referrals, people who we’ve worked with in the past, who we know trust us, we trust them or we know his family members, and word of mouth more than anything. We also have a great group of repeat clients and some institutional that we’ve done work for years. For us, they keep calling us.
For appellate lawyers, it’s common to have the same arrangement. It’s mostly relationships with other people. For me and Jody too, your relationships with trial lawyers, but I’m always interested in how trial lawyers get their work because ours is so dependent on those direct relationships with people.
That’s the key in our business for a lot of us. I know a lot of people have corporate lawyers or other people that routinely they have common clients and interests. It depends, but we are overwhelmingly still a relationship service business.
Having those repeat clients is always good if they’re involved in litigation on a regular basis. That’s something that we don’t tend to see quite as often unless you’re in an area like insurance and you’re handling a certain docket for a certain company. That’s great to hear. You’ve done a good job of making yourself visible in the legal community. There’s about half a dozen different ways that I know you, but one other way that I know you is through some of those activities like working on the Pattern Jury Charges Committee. It is something we can talk about. You and I also sit on the JCIT, the Judicial Committee for Information Technology. I love the PJC stuff. I have not been involved in it nearly as long as you have. In fact, you’re the Vice-Chair of the Business and Insurance Book, the Blue Book. How did you first get involved in that and what would you want to tell our readers about it?
I’ll start answering that in reverse order. What I’d like to tell readers is it’s a great group. It always has been. A lot of appellate lawyers are very thoughtful people, very thoughtful debate. Sometimes it can be like a law review where it’s minutia, commas and things of that nature. Sometimes it’s serious substantive, what does this mean in the law, jurisprudential type of discussions. Serving with you, Todd, it’s my second tour of duty to speak on the volume. They had enough of me for a while. I was off. I was doing other things, and then I came back. I don’t remember who first nominated me or how I first got on there, but I was on there for quite a while.
It was a huge learning experience. It’s great to be around and to hear different perspectives from both practitioners, mostly appellate lawyers but also trial lawyers, as well as judges at both levels. How all kinds of things that we take for granted or assume they are a certain way, how you hear, “I can’t believe that might be perceived or come out.” Keeping up with all the cases, the updates and making sure that the PJC that we’re putting out as a book product is faithful to what the opinion say, what the law is, to the best of our ability. The one example that comes to mind is at one time, this was the first tour of duty towards this interference with perspective relations, an opinion came out from the Supreme Court saying we’d gotten it wrong, so it’s time to change it. No question about it. It’s a great group.
That doesn’t happen very often that the committee got his marching orders. It was the Don Willett opinion that said, “This all looks fine, but it’s not correct.”
If I remember it right, Wal-Mart versus Sturges. It was way back when. We’ve had others where the law has been different than what we thought it was or clarified.
I imagine in the business and insurance context in particular, it’s one of those areas that continues to rapidly develop in Texas practice. I’m sure that you all have your hands full every couple of years, trying to keep track of all the things that have changed.
That’s right. I’ll tell you that, for instance, the volume when I first was on was a relatively thin, easy to bring around book. Now it’s a huge doorstop. We’ve had a defamation and invasion of privacy, the privacy torts and trade secrets. I’m always impressed with the level of effort and thoughtfulness that goes into it.
When I’m working on an issue that I know is in the PJC these days, especially our book, it’s gotten to be a good resource. It’s not a law review article. It’s not intended to be, but if you want to see and be steered to the principal authorities on a certain issue, especially Supreme Court authorities, it’s a good place to start in terms of research.
People overlook the comments to their detriment too. There is a lot of super helpful information in there that gives you off the beaten pathways of submitting things that people don’t often think of. It’s easy to get a proposed charge where somebody quotes the PJC, but you miss a lot of the nuances that come up if you’re not reading beyond that of, “Here are some things to think about.”
I’ll tell you that we spend, and Todd can also attest to this, while we occasionally do make changes, what we call above the line and what you’re referring to that people cut and paste and put into whatever charge they’re submitting. Most of the editing, work and arguments take place, what you’re talking about, the comment section that we call below the line. It’s tends to be thoughtful and after a lot of vetting before it gets put in there. Don’t you think, Todd?
I agree. I’ve learned a lot going through the last couple of years of being on the committee, and also go ahead and mention that we’re in a publication year now, and the new book is about to come out. In my opinion, there are parts of it that are outdated, even as it’s being released. That’s the problem you have with a periodically released publication. You’re always going to have new authorities that have to be factored in. We get a lot of support from the State Bar staff. They’re great working with us. They keep us in line and keep us on track. It’s been a wonderful experience for me. As you’ve pointed out, those are some impressive folks who have worked on that committee. I know the same is true for the others as well.
Talk for a minute though, I mentioned the JCIT because that’s been a busy committee for several years now. That’s the committee that Texas lawyers have to thank or the eFiling system that’s now in place and making that rolled out, administering and implementing the Supreme Court’s mandate that electronic filing be mandatory. It’s one thing about that committee that’s been interesting is watching how the mandatory rule came out, but it was phased in, and we’re supporting even the most rural counties in the state and getting eFiling in place, not only on the civil side but also on the criminal side.
During the pandemic, one of the many things that the Office of Court Administration and the people who work there have done is incredible and amazing in order to keep our profession working as well as it has with all the challenges, with the remote hearings, etc. JCIT, before the pandemic, much of our effort went into the eFiling, the new research Texas PACER-like system that has been implemented. I found it to be quite useful. This is another place where you get input from all sectors of the state at all different levels. Very informed, smart and talented people come together. It turns out to be a good product.
It’s a good decision-making, but I’ve learned a lot about filing, about the number of court systems we have in the 254 counties, each with multiple clerks. Everything else that’s involved with that has been fascinating. It’s something that they don’t teach you enough about in law school. You’ll hear me from time to time as an old guy that say, “They should tell you these things in law school.” One of them is the important function of the clerks and how in Texas, those are important elected positions and how court records and things of that nature that most practitioners take for granted. We file stuff and don’t think about it.
We were visiting with the folks that run an appellate law podcast in Oklahoma. We learned, much to our surprise, that they don’t even have eFiling at all in Oklahoma. The level that we’re operating in our state with mandatory eFiling and spreading it clear across the state and all jurisdictions, all court levels and all practice areas, it is quite a job to roll that out.
We were lucky that had been in the works for as long as it had. David Slayton and everybody else over there. It had been rolled out for so many years. It all helped the state continue relatively smooth as possible during this pandemic.
From the user perspective, it was a seamless transition with regard to day-to-day operations because you could still get everything online until the Ransomware shutdown the Courts of Appeals. It’s amazing to think about all the backend work that went into and still goes into that every day to keep that system going.
I don’t want to let it go by. I want to ask you a little bit about the book you wrote. I’ve seen it in some of your biographical materials, although I can’t recall the name of it. What’s the title?
It’s called Latinos and American Law.
What prompted you to research and write on that topic? You’ve got your cultural heritage. It’s a fascinating topic, but you’re a trial lawyer by day to author quite a meaty topic.
What happened is that when I was at third year in law school, I was able to teach a course at the undergraduate semester seminar on the different ways in which the legal system has affected Hispanic, Latino, Mexican, American, etc., communities and individuals in different ways that are significant. It was a college-level course. It’s good feedback. Everybody said I assigned too much reading, but other than that, I thought people enjoyed it. Sometime later, I thought it would be a good idea to try to put that together. It’s a college level. It’s not a case law book in the sense that you would have in law school or at that level.
It’s targeted to a college-level audience on what are the greatest hits in a way, and my own perspective on some of these. One of my favorites that I like to talk about is Balzac versus Puerto Rico. He was a publisher of a newspaper called El Baluarte. It’s very similar to John Peter Zenger, which many people know about from colonial times. He was criticizing the colonial governor appointed by the crown. He was in New York or Pennsylvania. Mr. Balzac was criticizing the American-appointed colonial governor in Puerto Rico. He did not get a jury like Mr. Zenger did even though he said, “We’re American citizens. We have a right to a jury trial under the Sixth Amendment and our First Amendment right to criticize the government’s position,” on whatever it was he was writing about.
The unanimous Supreme Court, surprising to us now, but perhaps not surprising if you know some of the history, concluded that the Sixth Amendment and the First Amendment did not automatically apply in the territories. The Sixth Amendment to this day has not been fully applied even though there are jury trials in Puerto Rico. It was not a constitutionally guaranteed automatic thing as some of the judges on the other side of that debate at one point would have contended. It’s a fascinating case. There’s the school district finance case, San Antonio Independent School District versus Rodriguez. I wanted to highlight different cases, all US Supreme Court cases that reached that level, that have a little different impact on a substantial number of people in the United States.
Do you teach a class on that from time to time?
I have taught it previously. It’s been years. As Todd pointed out, I’ve been practicing law a lot. It gets in the way. We’re trying to raise some children and do some other things. Maybe I’ll get back to teaching sometime. I enjoy it. It’s nice to be able to get back in that way.
I want to dive into the topic that I had in mind when I asked you to come on the show. We mentioned that you’re a trial lawyer primarily. We haven’t explored trial practice. We talk on here a lot about how appellate lawyers can help trial lawyers make their practices better and represent their clients, be efficient and focus in on some key issues in the case. I happen to know that you’re a trial lawyer who has handled a whole lot of his own appeals. The question I’ll start with is as a trial lawyer, what is your view of appellate counsel? We haven’t gotten to hear this very much.
Needless to say, I’m not speaking on behalf of the tens of thousands of trial lawyers across the state and everybody who’s got their own view on things. I’m sure there’s a wide variety of different views. From my perspective, I’ve always found appellate counsel to be super valuable and important. I have done my own appeals but not always. One of the things that I’ve noticed, and I frequently team up with other appellate lawyers, what I found has happened more in years is I’ve seen general counsel in-house and I’ve seen other clients also do this, which is to put together, cobbled together a team that’s right for them and for that particular case. I liked that view and approach.
I like to work with other people. I like to joint venture. I like to collaborate, not just with my partners and people at my firm but at other places. That can add value. In terms of how I view appellate counsel, when they always want to criticize me for all the things I should have done but didn’t do at the time, which I understand is largely the job of appellate lawyers. I know for years of practice that many times we get appellate lawyers involved early on to help with the charge, with summary judgment. The Daubert/Robinson Case Law is fairly well-developed, but when that was developing, that was another place where appellate lawyers were instrumental in helping guide trial lawyers to get the record you want.
In an ideal world, you would want to get an appellate lawyer involved as soon as you get your pleadings lined up and everything, and have them periodically jump in at the right times to help to make sure that the case is going on the track that we want it to go. That way, on appeal, you can share the decision-making responsibility. Sometimes you all get called for the first time after there’s been a verdict or a judgment and getting to know, “What happened here? How did we get here?” All these things that happened is a lot of time and effort. To ramp up, to get to know a case, giving you all the opportunity to jump in earlier if a client asked me would always be my preferred approach, but sometimes that can’t happen.
I’m pleasantly surprised at how you answered that question. That would be an answer that I would want any trial lawyer to give instead of the appellate lawyers tooting their own horns all the time as we do most episodes, but it’s not completely shameless. The reason why I was thinking about you from a standpoint of a trial lawyer who handles his own appeals is because I know you had a significant case that went up and down in the Fifth Circuit a couple of times a few years ago. You used to tell me about it from time to time. You’re one of the few people that I know who’s had an en banc argument at the Fifth Circuit?
That was a series of cases. My opponent was a very able counsel primarily from California, but also some here in Texas on a particular ERISA type of cases. Both sides were committed to the fight. I went to argue in the Fifth Circuit four times in those two cases, including an en banc argument, which was a great experience. I haven’t had the opportunity or pleasure of arguing before the Texas Supreme Court yet. I suspect it’s a bit similar. There are many of them during the en banc. I remember that the greatest mercy that Judge Owen gave me was, or I could tell that Judge Owen was asking a question and I could hear her. I knew the question. I knew who was asking, but I couldn’t find her in the placement of everybody.
One of the other judges thankfully and mercifully made a gesture to point to where she was and that was quite helpful. That was a great experience and opportunity. I was happy to be able to do that. It’s a lot of fun. I appreciate and admire a lot what called real appellate lawyers like you all do and what you all do regularly. I enjoy it too. To be able to dive into the record, get the salient parts, try to lay it out in the best way you can, and then present it in a way that’s meaningful to judges and others who have already read through the record and have very specific targeted questions that they’re asking us as lawyers to do what we can do best, which is help the court and the clients, of course.
I’ll go out and say that you’ve got the mindset of an appellate lawyer with all of your comments. Jody, I didn’t coach him on the things to say. You’re touching all the bases. You’re talking about things that we’ve talked about here on the show a lot, as far as the skill set it takes and the ability to focus in on the things that are likely to be important to the court. One thing that seems like it’s difficult, if you’re going to handle your own appeals is divorcing your mind from your perception of what happened at trial to take a step back towards a 30,000-foot approach to the issues in the case. Do you have any suggestions for other trial lawyers who would want to handle their own appeal? How do you go about that yourself?
It does happen that the way you remember something is not necessarily the way it looks on the appellate record. I will tell you that. Either because the demeanor of a witness or because I’m sure that that came up, but then you can’t find it somewhere. It can be very frustrating. It can be hard when you’re doing the second or third go around of what you had done before. Having that preconceived notion of, “No, I was there. I can tell you what happened.” Appellate lawyers go back and forth skillfully and criticize each other’s writings, positions and things of that nature. Sometimes it can get chippy at the trial court. Sometimes that can be difficult too. It is working through how you viewed something, and then seeing it on a cold record can be different. In terms of advice for a trial lawyer handling their own appeal, the best thing that I can think to do is to try to take it over and like the way you all do, which is not walk into it thinking, “This is what we need to do,” but rather what’s the issue in the case? What happened? What does the record say? It’s hard.
One of the things that I’ve always thought was a hard part of trial work is wearing two hats. On the one hand, your focus is winning the case and making sure that your strategy is focused on that. At the same time, making sure that you’re making the best record that you can. That’s a tough thing to do. How do you walk that line? Do you find having done a lot of appeals influences the way that you do both of those things?
Having done appeals makes me a better trial. Having tried cases, may help me contribute better on appeal. The short answer is it depends. Many times, you can be in the middle of trial and some issue comes up. We have a very heart to heart discussion with a client about it and say, “There are two different things going on here.” One is we’ve got to preserve the record, but are you going to antagonize the judge by doing this? Are we going to do something which the jury is going to perceive? If it’s a jury trial, the jury is going to perceive as you’re obstructing the coming of truth or whatever the discovery of truth.
You have to make those calls as best you can. I found certainly in Texas and I’ve been involved in some trials outside of Texas, but in Texas, most trial judges have the right attitude and demeanor about these things. Don’t try to make it any harder for you to preserve error on appeal. There are some exceptions. Overall, the judges will accommodate you when you let them know that this is an issue. We may have to take it up on appeal. They’ll find a way to do it outside the presence of the jury or they’ll give you opportunities to preserve your record. If you’re straightforward with them and spring it on them unexpectedly or tell them it’s going to be this long, but then you string it out with some attempt to make objections on the record, etc.
The jury charges, the other part where it’s hugely important. I would be lying if I said to every case, I always have a jury charge at the beginning that doesn’t happen. In every complex case, I tend to do a jury charge pretty early on and have that inform discovery, depositions, motions, and carry that through. It’s much harder to put the charges together at the end, 30 days before trial. You can avoid some difficulties by doing it ahead of time.
When you try cases as lead counsel and if you’ve worked at the jury charge, do you find it hard to make that change between arguing the charge, making your charge objections, and then going right into your closing? In my observation, I’ve always viewed that as being a great place to have someone not involved in examining witnesses and necessarily making the jury argument come in. Your mind has got to be, “I’m about to give the most important speech of the week to the jury. Yet I’ve got to make sure I preserve these objections.” You may be a little different than a lot of lawyers because you’ve got the experience having served two terms in the PJC Committee. We talk a lot in that committee about error preservation. One of the reasons why I got involved in that committee is because I wanted to get better at doing jury work board. What’s your experience with that?
What I’d say on that is I have tried a case 100% by myself, maybe more than one. There’s one that comes to mind in Fort Bend County. That’s a rare situation. Most of the time, I’ll be trying a case as part of a team. To me, some of the charge issue is a task to be assigned ahead of time as to whether I’m going to be taking the lead on it or somebody else. We factor that when we decide, “You’re going to have to take this witness or this expert or whatever because I’m going to be dealing with a charge or what have you or I’ll do that, and somebody else will deal with the charge at least either the informal charge conference or anything that may come up along those lines.
I look at it in some ways like settlement. If I’m trying the case, if I’m either the lead lawyer or the primary lawyer trying the case, I don’t want to talk settlement. I’m not interested. It’s a total distraction. Somebody else can do that, whether it’s an in-house counsel or another lawyer on the file. I think of the charge similarly. That’s a discrete task. If you’ve got the luxury of having one-on-one attorney, which we typically do. If you’ve got any tips, I’ll take them from either one of you, Jody or Todd.
You’re doing it the right way. Trying to juggle it is so hard because it’s very easy, especially when you have one of those cases where the charge has been a work in progress. The judge passes out a copy of it and says, “Everybody, take 30 minutes and then come back and make your objections.” If you’re doing that at the same time you’re trying to write your closing, that’s such a hard thing to try and balance all those different roles at one time.
The theme that I’m hearing coming from you is collaboration. You have the capacity to do good work and preparing a brief and arguing a case from the appellate side. It would be a whole different deal for me to go and say, “I’m going to suddenly start taking depositions. I’ll try to argue motions in the trial court. That’s not a problem.” Most of the fact witness and the expert witness stuff is a little hard to go back to that after doing what I’ve been doing for a long time because of the legal issue work. The collaboration theme, it sounds like given the choice, if you’ve got the right circumstances, the right case, the right client that you can compartmentalize some of these discrete past where you can be efficient and focus on, who’s going to take the fact witnesses? Who’s going to take the expert witnesses? You might divvy that up even further.
Sometimes depending on the case, you can say, “Lawyer 1 will handle the claims coming at us,” for lack of a better way. In a business case where there are typically claims going both directions or it’s not as important who the plaintiff is in many cases. You can compartmentalize witnesses that are primarily on the counterclaims versus on our claims, or you can divide it by damage. There’s a way to do that. The other thing, and I know, Todd, we’ve talked about this a lot through the years, attorney’s fees is another area where this is important. I had a case that I’ve tried by Zoom for not three entire weeks, but over the course of three weeks, maybe 7 or 8 trial days, whatever it was. I had the luxury of having co-counsel for a different client who did a lot of the heavy lifting on a lot of the things. I was the only lawyer for my client in most of these things. As we were getting ready towards the end, and the attorney’s fees issue were coming up, I wanted to bring in one of the other lawyers at my office to present me on attorney’s fees. I know you can do that in narrative format and I’ve seen people do that very effectively. It’s not how I prefer to do it.
That has to be harder now than it used to be. We did a show on attorney’s fees. Jody and I have expanded on that topic quite a bit. In fact, Carlos, you and I have talked about it in another context. With the detail you got to go into, you can use your billing records to provide a lot of the detail. It seems that the way the courts are looking at these things now, it’s more dangerous than it used to be to testify in a narrative form. If you’re going to get up there and read your outline and you do the work ahead of time, then I suppose. I’ve never testified in narrative form that I would want to. I want someone else directing the discussion and talk about it ahead of time as far as what it’s going to be. I can’t imagine that.
I’ve seen it done very skillfully by people who are good lawyers. I’m like you in that regard. I prefer to have the question and answer in a traditional format and at least have an idea of what the questions are going to be, and make sure that all the boxes are checked of what you need to do under the case law, in particular Rohrmoos, which I’m sure you all have talked about it. Everybody knows about it by now. It’s such an important seminal opinion in the area of attorney’s fees in Texas.
It’s a unanimous court. I can almost glean Judge Green on behalf of the court saying, “We’ve been telling you, people, that this is how we want you to do it. You guys seem to not be getting the message.” That’s how I interpret that case. It’s very clear and a good roadmap. There are still some inconsistencies as to how attorney’s fees are done throughout the state. That’s a part of what keeps you all and me in business is continuing to clarify the unresolved issues.
Todd and I both agree with you. That’s pretty much exactly what they were saying in Rohrmoos is, “We meant it. It’s lodestar and here’s how you do it. Stop messing around with this other stuff.”
It wasn’t quite as clear as the court had meant for it to be because there had been several different approaches taken still and different views from the Courts of Appeals. Justice Green and the other eight members of the court made it crystal clear in Rohrmoos of how things were supposed to go going forward. As we have talked about between us on our episode, it’s not quite as cut and dried when it comes to proving up the appellate fees. We’ve covered this in detail. I don’t want to necessarily tread a whole bunch of new ground. One of the things that you and I have debated a little, mostly inside the four walls of the PJC is how to submit attorney’s fees in a jury charge because the PJC, the way it reads is you’ve got several blanks for different phases of an appeal.
One thing that we’re going to have to look at from the committee standpoint is what does the Yolo versus Granite operating company case do to the way that perspective conditional appellate fees are submitted. What the court said that I think is going to make things more complicated is that it’s not a strict lodestar analysis. You have to make that prediction. Even though it does seem very similar to lodestar, the standard is not exactly the same. It’s going to be interesting to see how that evolves. I’m watching it very closely.
My two initial thoughts on that are, one, the 2020 volumes are coming out any day now. It’s going to be materially different. There’s going to be a change in the attorney’s fees section. That’s going to be important for people to take a look at, helping address issues of apportionment or sometimes called segregation and some other things. You and I, Todd, respectfully disagree on the ideal work way to submit conditional appellate fees to a jury. From my perspective, I do think it’s not that different than lost profits in the future. We often present evidence to a jury as to what we think something would be in reasonable probability and those support and award judgment hopefully get affirmed on appeal, etc.
I see the appeal, and this where people on the show are all going to hate me now, but I see the appellate lawyer appeal of having more and more blanks where juries can write numbers. I respectfully understand that there are differences in terms of briefing when the petition is initially requested if you were asked to respond to it, the full briefing on the merit’s argument, those different levels. That’s going to remain for a while the way it’s done. I don’t know that you couldn’t collapse some of those. Especially in a case where there are multiple attorney’s fees questions to a jury, and because of the nature of the proof, etc., that would be one where, as a trial lawyer, I would prefer less blanks rather than more probably.
That’s where you reveal your true colors, Carlos, because we appellate lawyers, we want more blanks for fees. You’re exactly right.
On the plaintiff’s side, as a trial lawyer, I want plenty of blanks too. I want to give the jury an opportunity to correctly award damages as many times as possible. It parses it down so much. To use jury charged language, it’s granulating future appellate fees in a way that, “Can you do it that way?” Sure. “Is it the only way?” No.
I’m curious about your thoughts, Carlos, as a trial lawyer about submitting attorney’s fees to the jury versus the judge?
I have a lot of thoughts about that. I have an opinion as much as thoughts. It depends. Juries don’t like attorney’s fees disputes. Judges don’t like trying attorney’s fees cases to the jury. We have a constitution that rightly provides a right to trial by jury on tribal issues. If there’s a fact issue, that’s who decides it in the absence of the contrary. Many times, I’ve been able to reach stipulations with the other side on either rates, amounts, any number of things. If you can do that, that’s great. Many times, you can’t do that for a variety of reasons.
In terms of jury versus bench, it takes longer to do it in front of a jury, just like any jury trial takes longer. The judges get it right away and they want to know the things that most lawyers look at, what do you spend your time on, etc. With the juries, you get to tell more of a story about the case. I’ve done it both ways. The third way that we do at regularly in Texas and federal court, by post judgment declarations and motion practice. All of those have pluses and minuses. I’d say that the federal ones are like doing appellate work.
It can be very detailed. Even though it’s near and dear to all of our hearts, I find in federal court and sometimes in the state court once there’s a serious briefing issue. Looking at other awards of attorney’s fees is a big deal. If you track down every fill in the blank, every DTPA case you can find where fees award and you can present to a judge, “Here are 50 cases.” The ranges go from this to that. The ones that are outliers are outliers for the following reason. That can be compelling to a judge and have had some success with that.
You point out very succinctly. We have a new volume coming out. It’s what the trial lawyers and appellate lawyers in the State of Texas are going to be looking at for the next few years. We’re going to see some more decisions, and what the Yolo are going to tell us more about how the appellate fees ought to be submitted, and how they should be proved. That was the point of the Yolo was, how do you prove it? We’ve emphasized already on this show and I’ve talked about it in other places, and you have too. You need to be sure and pay close attention to how you prove up your fees. You can trip, stumble and make a real big mistake if you don’t do it correctly, especially after Yolo and even before Yolo.
The signs have been there. You talk about with Rohrmoos is like the Supreme Court said, “We’ve been telling you all about how we want to do this.” The same is true with appellate fees. There is some Supreme Court case law going back to 2017 where they started saying, “You didn’t do this right. It’s a take nothing award on the appellate side, which is in my view, that’s pretty awful to have that happen because the appeals, the cost doesn’t stop because the appeal has gone up. The other thing that people need to be cognizant of when they’re asking for appellate fees is post-judgment fees. Those are going to fall under the same basic group framework as Yolo. You won’t have your fee statements in hand to be able to show the fact-finder in terms of what things can cost. That’s something else to consider.
I’m not necessarily advocating for another blank for those here. We’ll have that debate when we get back to the PJC Committee. Carlos, thank you so much for coming on. We’ve reached a good point to conclude for the day. It’s been a pleasure to have you and hear your perspective. We would like to have more trial lawyers on the show. Maybe we’ll start something here. We’ll get folks who even disagree with us about the value of the appellate counsel. We’re happy to have those debates.
I’ll see if I can find someone for you.
We always like to have our guests wrap up with a tip or a war story. Do you have something that you would be interested in sharing with our readers before we wrap up?
No, I don’t think so. We’ve covered a lot of ground. I appreciate you having me on. You all have a great show going on. I appreciate being a part of it.
Thank you. We appreciate you being here.
We’ve talked a lot on the show about how I’m a solo practitioner and have been for a couple of years now after meandering my way through different firm settings and practices. I needed to have full disclosure for everybody who reads that that’s changing. I’ll be joining Butler Snow here in Austin to practice with three former guests on the show. I promise you, this is a complete coincidence. My good friend, Scott Field, a former justice on the Third Court of Appeals. The practice group leader is Amanda Taylor, who was also on the show to talk about TCPA stuff. Our associate in the office is Marshall Bowen. That’s going to be a big change for me.
I wanted to disclose that because at some point, I’m going to stop talking about being a solo practitioner and start talking about what it’s like to be in a dedicated appellate practice group. That’ll be like a boutique within a large firm. I’m looking forward to that. Everybody, that change is coming. I appreciate all the support that I’ve gotten. It’s been great doing what I’ve done for the last couple of years on my own, but the time had come to make this change. I had an opportunity to work with that group and I couldn’t pass it up.
It’s a great group.
Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.
Important Links:
- https://SSMLawyers.com/
- Reagan Simpson – past episode
- Latinos and American Law
- Attorney’s fees – past episode
- Butler Snow
- Scott Field – past episode
- Amanda Taylor – past episode
- Marshall Bowen – past episode
- Thomson Reuters
- Court Surety Bond Agency
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About Carlos Soltero
Carlos Soltero has tried a wide range of cases for over 25 years throughout Texas and beyond the Lone Star State. Carlos is frequently asked close to trial or in connection with injunction proceedings to lead a case or assist as co-counsel with witnesses or jury instructions and other trial work. He represents other lawyers and assists them in a range of professional and personal litigation matters. Carlos has also published and lectured in various areas relating to trial and pretrial practice — including jury selection, expert challenges, attorneys’ fees, discovery, choice of law in private international litigation and employment discrimination. Prior to starting Soltero Sapire Murrell PLLC, Carlos worked at other well-known firms and served as head of the Litigation Section at McGinnis Lochridge, LLP.
A graduate of Yale Law School and a trial lawyer that is board certified in Personal Injury Trial Law, Carlos primarily represents individuals, lawyers and small businesses in courtroom disputes ranging from commercial, intellectual property and technology, to landowner rights, personal injury, wrongful death, and other tort cases. He has tried a wide range of cases as a first chair or in a supporting role to juries, judges and arbitrators as well as handling dispositive or case-altering hearings. Carlos has also represented parties for over two decades in appeals including oral arguments before the Fifth Circuit Court of Appeals and Texas intermediate courts of appeals. Carlos is fully bilingual and a native Spanish speaker.
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