Briefing Beyond Word ...

Briefing Beyond Words | Mark Trachtenberg

August 4, 2020 | by D. Todd Smith

Listen to the podcast here:

Attorneys are skilled at painting pictures with words. But that can only get them so far. As technology has improved, so too has the opportunity to enrich briefing with visual aids—pictures, charts, videos, and animation. As courts move to electronic filings and briefs, attorneys who fail to adapt will get left behind. In this episode, Todd Smith and Jody Sanders interview Mark Trachtenberg from Haynes and Boone about his article, “Briefing Beyond Words,” and his tips and strategies for using visuals to enhance written advocacy. Mark draws from his own experience using visuals in trial courts and appellate courts and explains how they boosted the effectiveness of his advocacy. Mark also shares his insights about where this method is heading, the need for rules addressing visuals, and more. Follow this discussion to learn how effective visuals can make a huge difference at every stage of a case.

With us is Mark Trachtenberg from Haynes and Boone‘s Houston Office. Welcome to the show, Mark.

Thank you for having me.

Tell us a little about your background. A lot of people in Texas appellate practice will know you, but where do you come from? What’s your background?

I’m a kid from Houston. I’m not too far away from where I started. I live a few blocks away from the high school. I went to Bellaire High School.

You’re from Houston originally. Bellaire, that’s a school that I’ve certainly heard of.

I’m in the Bellaire office at Haynes and Boone in Houston. I grew up in Southwest Houston. I went Northeast for college and law school, Penn for undergrad, and Yale for law school. I had enough of the winters up there and was ready to get back. I came back and did a clerkship for Judge Rosenthal in ’98, ‘99. That was a great experience. After that, I was at a firm called Mayer Day Caldwell & Keeton for about a year and a half before I figured out that I wanted to do appellate work. Once I came to that realization, I looked around and got an opportunity to come to Haynes and Boone, Houston in March 2001 and I’ve been there ever since.

What led to your interest in doing appellate work?

It hadn’t occurred to me. It wasn’t on my radar in law school. I didn’t do moot court or anything like that. When I did my clerkship, I enjoyed the research and writing aspect of that, not with the district court judge, but Judge Rosenthal’s. Her opinions are pretty extensive. Her reputation is well deserved for a lengthy and thoughtful opinion. That was pro bono appellate work, but I went to Mayer Day and asked them to be able to try both litigation and transactional. I hadn’t even made that decision at the time. About a year into my practice there, I had an opportunity to work on an appellate brief. They’ve struck it on bond brief where Bill Boyce with Fulbright at the time was co-counsel. Working on that brief was the first time I came to work as a practicing lawyer every day. I’m happy, excited, and engaged. That led me to start asking around the appellate community about what the practice was like. Robert Dubose was somebody that had been at Mayer Day and somebody I knew was in the appellate world. We had some extensive conversations and everything he said about the practice piqued my interest and I went from there.

You transitioned over and joined Haynes and Boone, which has a great appellate section and always has.

Lynne Liberato and Alene Levy were the partners at the time in the group, and Kent Rutter was a Senior Associate. I was fortunate to get a spot there. In my first week at Haynes and Boone, I discovered that they were on the cusp of filing the school finance lawsuit in Dallas. Coincidentally, I had written in law school a lengthy paper on the history of Texas school finance litigation that had gotten published by the Yale Law & Policy Review. The people in Dallas and Haynes and Boone that were getting ready to file this lawsuit had used that paper to prepare the lawsuit and figure out what claims they wanted to assert. In that first week, somebody in Dallas figured out that it was the same Mark Trachtenberg that had written the paper.

The next thing I know, I get a call from George Bramblett who, if there was a third name in Haynes and Boone, it would be his, asking me to join the school finance team. By joining, he meant running point on this lawsuit. I was still a very baby lawyer. It took off from there. That was the beginning of my involvement in the West Orange-Cove School Finance Case, which went up to the Supreme Court twice and culminated in a victory in 2005. It was a cool and great coincidence that I joined Haynes and Boone at the time this case was about to take off.

That’s one that we all know about. They’ve had another round of all that too.

We counseled for a group of school districts the second time around. We were hired in 2010, 2011. That was sixteen weeks of trial in Austin and then up to the Texas Supreme Court again. We had a disappointing result in that case, but very fulfilling to be able to be involved in something that is an issue that is important to the future of Texas.

That 2005 case, was that tried here in Austin as well? Is that the one that went before Judge Dietz?

Both cases were before Judge Deitz. Judge Deitz had his famous Godzilla study that he kept on his bench that he would break out whenever an attorney angered him. My first speaking role at a case was before Judge Deitz. I was making a presentation on West Orange-Cove Texas high school graduation rates. In the middle of the presentation, he stopped me and said, “Trachtenberg, do you know what the Mendoza Line is?” All the attorneys looked around wondering what he was talking about. Me, being the avid baseball fan, I knew that was the only Mendoza Line I’d ever heard of was named after Mario Mendoza, a ballplayer in the 1970s who could barely hit 200.

I told the judge. That’s what I answered the question that I thought it was a baseball reference. I got the reference right, much to the amazement of George Bramblett and the rest of the lawyers in the room. That was my very first oral argument question from a judge. Fortunately, my baseball expertise came in handy there. Judge Deitz’s point was that the equivalent of the Mendoza Line for states is the Mississippi line. If a state is doing worse than Mississippi equivalent of a baseball player doing worse than the Mendoza Line. The graduation rates statistics that I had mentioned to him, we fell below Mississippi. That was Judge Deitz’s very colorful way of making that point.

I grew up in Orange, Texas. West Orange was our rival high school. I was very familiar when all that was going on. I remember it well.

What a great experience for a younger lawyer though, to not only write the law review article that gives you the roadmap, I suppose, to be followed in the litigation, but then to stand-up and the first time you speak in court. You have a question that I’m sure I would’ve fumbled that one badly. In front of Mr. Bramblett, no less. It’s probably safe to say your career at Haynes and Boone was taking off at that point.

What I know I was getting Bramblett’s book that I could answer a random question from Judge Deitz and do okay and impress the judge.

He was no easy one to please. He still sits as a visiting judge here in Austin from time to time and the Godzillas are famous. I remember when he retired, the disposition of the Godzillas, they were a hot item, I think. In your practice, it sounds like you’re continuing to do some trial work in addition to having an appellate practice.

Usually, in the trial level, it’s a supporting role for our trial lawyers, whether it’s a summary judgment, briefing, jury charges or post-trial, or post-judgment briefing. The School Finance Case was a bit of a one-off because of that special expertise. Primarily civil appellate practice with the trial support role, which is a big part of any civil appellate practitioners’ practice in Texas when we’re having jury trials again.

One of the things I know you’ve been up to lately, you presented a paper at the UT Appellate Seminar and the title of the paper is Briefing Beyond Words. You focus on the paper on using visuals to enhance written advocacy. You’ve picked up on, and certainly, we all have seen a trend of using visuals in briefing. My feeble efforts added have not been nearly as sophisticated as some of the ones that appear in your paper. It’s a fascinating topic. What got you interested in that topic?

I’ll have to say that I became convinced of the power of visuals in a products liability case many years ago. I was part of a team representing Whirlpool Corporation. The premise, in that case, was that a design defect in Whirlpool’s dryer had caused a fatal fire. I was the associate working on the brief. That crucial piece of evidence at trial was an exemplar dryer, a copy of the one that burned in the fire. The exemplar dryer was in front of the jury. All the trial lawyers had been referring to various parts of the dryer that vent transport to the heating element, the in-wood screen, the lower housing.

Reading the call record, it was very difficult to decipher what they were talking about because the lawyers were pointing to different parts of the dryer in front of the jury. We knew the Supreme Court wasn’t going to have the dryer in front of it. The pictures that we had in the record were not fully adequate to explain the dauber concepts that were at the heart of our appellate argument. We needed to explain how the air flows through the dryer, what the various parts are, why it was scientifically possible for the fire to have it started in the way that the plaintiffs theorized. Our solution was to hire a company that developed interactive animations of the dryer. One of them showed all the parts of the dryers.

TALP | Briefing Beyond Words
Briefing Beyond Words: Pictures and images are important in products and IP cases if you’re trying to orient the court and explain the product.

You could literally press a button that would take the back cover off the dryer and had all the parts listed. You would hover over any of those parts and the part would light up and in green so you could easily identify what the parts of the dryer were. There was a separate animation that showed how air flows through the dryer. This was still the era of paper filing. We filed our brief with a footnote that said, “We anticipate filing an electronic brief with animations that will help illustrate our point.” We sought and obtained leave to file an e-brief that had these animations embedded. They were powerful animations and helped illustrate why we should win.

In fact, we did win a unanimous opinion, reversing the judgment in that case. Justice Phil Johnson wrote the opinion and has remarked, both privately to Lynne and me, as well as various CLE forms, how helpful the visuals were to the court’s adjudication of the case. If you look up the opinion, in the appendix, Justice Johnson included a picture of the dryer with all the labels of the various parts that were clearly constructed from our animation. Long story short, we have a firsthand account of how effective visuals can make a huge difference in the outcome of a Texas Supreme Court case.

Was that the Camacho case?

That’s right. Whirlpool versus Camacho.

You had mentioned before we started, you used them in the school finance litigation very effectively, particularly in round two.

The School Finance Case, so much of the evidence at trial was so data-driven. Demographic data, student performance, data funding data, and all the witnesses were using PowerPoints to present that data, whether for their districts or statewide. We were able to incorporate a lot of those graphs, charts, and tables in our round of briefing. It was an interesting issue also from an appellate perspective, especially in the West Orange-Cove. We had used all of those PowerPoints during the trial phase. Most attorneys were saying, “Next slide,” in the courtroom. Reading the full record, it was very hard to figure out what everybody was talking about. The court didn’t have the PowerPoints in front of them along with the testimony. In that case, we endeavored to create a hyperlinked transcript with the cooperation of all the parties where we manually inserted all the PowerPoint slides that the witnesses were talking about so the court could more easily review the testimony and the record and see what we were seeing at the courtroom at the time. Another appellate wrinkle from that case.

We’re going to have to do an episode about making an effective record sometime because that is something you don’t think about when your expert or whoever’s going through the PowerPoint. “And this slide shows this, this slide shows that.” The Court of Appeals is looking at it going, “Okay.”

We’ve had that issue come up a few times on the show, showing us. We can all see each other. When you hold something up and say, “Like this.” That doesn’t translate. It’s a similar issue.

It was a problem. It took a lot of hours and a lot of cooperation on the parties to try to come up with a tool that would make it easier for the court. Obviously, in a lot of cases, that’s hard to do and pretty expensive, but I’ve given the public importance of the case. We wanted to make sure the court had a full and complete understanding of the record as possible.

You mentioned the Whirlpool case had an animation being able to take apart the machine and put it back together and show feature certain aspects of it. You talk in the paper about several other types of visuals. What are your favorites among these or do they serve different purposes?

Pictures and images are important in products and IP cases if you’re trying to orient the court and explain what the product is. Connie Pfeiffer did a great job. There’s an example in my paper about an aerial work platform for Genie that was the subject of one Supreme Court case. I know the Supreme Court used her visual in his opinion. In IP cases, if you’re trying to compare or contrast the litigants’ products or morals or intellectual property, images are important. Accident scenes. Graph charts are incredibly important and particularly I’ve used them extensively when you have damages issues. When you try to highlight some flaws in an expert’s damages model, graphs and charts are very important there. Maps can be used in oil and gas disputes, any type of title dispute. It depends on what the case is about, what the issues are. I go through a number of different categories in my paper about the types of visuals and when they’re most helpful. I think a lot of these are underutilized tools, even tables which are texts can be used very flexibly in a lot of different settings.

They can be used to summarize and contrast relevant case law. I have a couple of examples that are included in my paper in the appendix there. We’re going to talk about this in the BHC case. The decision I got from the Texas Supreme Court, we used a table there to provide the court a roadmap and a very complex case with a lot of moving parts to help guide their decision making. That was a good time to talk about that graphic. That would be interesting to learn, too.

Of course, take us through it.

This case involved a challenge because we had four different elements of the judgment we were attacking. There was a breach of contract claim, trade secret misappropriation claim, a tortious interference claim, and then a remedy issued on an injunction. Our challenge was we had a lot of different arguments, but not a lot of cross-cutting arguments. Damages were mostly cross-cutting, but a lot of different arguments that only went to one aspect of judgment or maybe two. We also have the complication of having a whole set of co-defendants with our own set of issues that they were attacking. It was a morass for the court and difficult for them to figure out how it all fits together. We came up with the idea of putting together this table. We called it Pathways to Reversal and Rendition. Along the top of the table, we identify each claim we were attacking. Down the left side, we included each argument in our brief with page references and section references.

We provided the quarter roadmap to figure out what each argument did, what the effect of each of the arguments was. To provide some structure to the brief, and ultimately we attached it as an oral argument exhibit as well. I know during the argument, Justice Busby, I’m suspecting, he was looking at it when he asked me a question about if they resolve the damages issue in our favor, was there anything else they needed to address. To be able to provide the court and a complex case a roadmap to show how and what the effect of any particular decision or ruling is something worth considering in a case of this complexity.

Do you have somebody in-house that prepares the graphics for you? Do you send that out? How does that work?

We have a great internal team at Hayes and Boone. We’ll have an idea of what we want to put together, or sometimes we’ll take the first crack at it, and then they’ll make it look a lot prettier. Sometimes we conceptualize it. We have a great internal team. If you’re solo or have a smaller firm, there are great resources out there. If somebody wants to get in touch with me, I’m happy to make suggestions. The animations we used in the Whirlpool case were done outside the firm.

I imagine something like that. It’s got to be a lot more specialized company that does the recreations and accident reconstruction type stuff. I’ve seen a lot of animations done with that effectively, where you can recreate what the expert believes the sequence of events was. It does make a difference. I was thinking when we were looking at this topic, another way that I saw it used effectively, it was Aaron Street’s Amicus brief in the Masterpiece Cakeshop case. He was making the point that cake baking is not just cooking. It’s more of an artistic endeavor. His amicus brief was filled with pictures of these cakes. It was a neat way to make the point.

I need to check that out. Another great example is the amicus brief that was filed in the US Supreme Court about The Ten Commandments monument in the front of the Texas State Capital. That amicus brief was filed by the solicitor general. It used a number of great examples of depictions of the ten commandments and a lot of other settings, including the US Supreme Court building itself to make the point about how ubiquitous it was. I thought it was an effective use of photography in that case.

You’ve got the range of images that help distill down a lot of data and break it down into a digestible format. The range being from the most complex, which is some of the things that you’ve described, to even something as simple as a shot of an exhibit. You mentioned images of documentary evidence is one of your categories of visuals. That’s something that doesn’t require any particular expertise as far as manipulating data or anything, and yet it can still be effective.

There are some great examples of that in the paper and you’re right. You should be mining the same documents and photos that were used at trial and the things that would have made an impression in front of the jury or things that you should be thinking about, including in your appellate brief. I included another example of a photo from my colleague. Kent Rutter had a brief about a train collision and the photo depicts the train collision and the view that the truck driver would’ve had half a mile at the crossing was completely unobstructed. It was to emphasize that the truck driver had a clear view of the rail crossing and powerfully reinforced the textual argument in that case. That was a plug from a trial exhibit, but adding the visual enhanced the textual point in a visceral way.

I’ve used it a couple of times in contract cases where you have a provision where they’ve handwritten some language in and taking a snapshot of the document itself and put it in. It does have a different effect than if you transpose it on there and rewrite it your way to see where they added the words in when the court’s looking at it. That seemed to help in those cases to put it in there. The question is you have to count all your words to include them in your word count because it doesn’t come up automatically.

That’s tricky. The Boy Scout method would require that.

That’s what I did. I assumed it hand-counted the words and put them in there.

TALP | Briefing Beyond Words
Briefing Beyond Words: As an advocate, think about ways to make it less monotonous for the judge and make it easier for them to digest and process the information.

The argument is if you rely too heavy on images that have text in them, then someone’s going to say, “You’re trying to skirt workout.”

I do think we’re going to need to see more rulemaking in this area. As visuals become more and more prominent, I don’t think anything in the Texas rules or even federal will speak to the issue at all. Whether how it’s treated for word count, whether you can alter it. Can you take a photo that was used at trial and can you cut it? Can you add white to it? Can you make it look prettier? Can you alternate in any way when you file it in your appellate rates? There’s no rulemaking about how you use visuals in a lot of these settings.

I’ve had a couple of cases, particularly with an electronic record where you’ve had the photo that was given to the court reporter that then gets scanned in, and the quality of it is much different than what the jury saw. The question is how do you treat that? It’s not the case anymore where the court reporter sends the originals to the Court of Appeals and they send it along to the Supreme Court. They get what’s on there. Do you substitute? Do the parties agree? That’s always a tricky question.

What you said touches on another topic in your paper, Mark, which is where is all this headed? You mentioned the possible need for some rulemaking to address this. You also talk in the paper about embedding videos and GIFs. I’m trying to imagine that. The easy stuff is the stuff that was admitted into evidence, it’s an exhibit and you can cite by page or volume in the reporter’s record exactly where it appears and the court can go look it up itself, or you can attach it as an appendix. I suppose if video and other more active forms of media are used in evidence, and that’s not an issue. The question is the same issue that we’ve seen and heard with respect to whether Zoom hearings and trials are going to be recorded. It’s what happens when you send this information up to the appellate court when they’re supposed to be applying a certain standard of review to the information, how does that shift? What do you think about where things are going besides a potential rule change to address these issues?

You raised a good point about what happens if these photos or animations videos become easily accessible to appellate justices whereas in the past, does it alter the traditional allocation of decision-making power between the jury and the trial court or between the trial and appellate court? If there’s powerful video evidence, does that mean the appellate justices can look at it and see for themselves? Does that affect whether they defer to another the fact-finders view of that video? There’s a famous case where this became an issue called Scott B. Harris in the US Supreme Court. In that case, the district court and the 11th Circuit had projected a police officer’s claim that he had proven qualified immunity defense as a matter of law.

The Supreme Court overrode the lower courts based on their review of the police dashboard video in that case. The court said the videotape quite clearly contradicts the version of the story told by the respondent and adopted by the Court of Appeals. The descending judge had castigated the majority for misinterpreting the video and the majority responded, “We were happy to allow the videotape to speak for itself and included a link to the website hosting the video.” That’s an example where a video can have a powerful impact on the justices and raises the question of whether, if this does become more prominent, what that does to traditional deference to the fact-finder? I think it’s coming. There are probably megabyte limitations that might interfere with embedding a lot of videos.

I know that there were some cases where even we have as to where you include a link to an outside website hosting the video. The technology is there where you can embed a body cam, a police dashboard cam. Whether using a medical procedure, security videos, you can embed those right into the heart of your brief instead of cite into the video that was played as an appendix item. It’s the same thing with audio files, 911 calls, that also could be easily embedded. All that stuff is on the horizon. We’ll have to figure out a way to make sure to think about how that affects the traditional balance of decision-making power. A lot of careful thought needs to go into that, but it’s definitely coming.

It does seem like something that the Supreme Court rules committee needs to think through in Texas, because if you embed a 911 call in there, those are words, but they’re not written words. Does that play into your word count if you put it in demonstrative evidence? How do you use demonstrative evidence to get played before the jury, but didn’t necessarily get admitted? Does the court get to see that? It does raise a lot of interesting questions.

I’ve had conversations with Supreme Court for Blake Hawthorne when I was preparing this paper and he pointed to even other possibilities that I thought were pretty interesting. He suggested that could be a time when lawyers could prepare an embedded short video of themselves presenting an oral argument, maybe in place of the traditional summary of the argument and brief. He talked about whether you might be able to switch from a PDF to a more ePub format, which allows the reader to control the font size and other aspects of how the brief has presented to be able to expand images and the like. Make it more flexible for the reader and give the reader more control. I don’t know that any of these things are on the horizon, but it was an interesting discussion, nonetheless.

It seems like we’ll have to get to a point where all courts are all reading electronically versus a paper format, but that is interesting. For a lot of courts, that’s already the rule. I know we’ve talked to a couple of people on this show that still do use paper. I still like to read on paper too when I’m making my notes and stuff. I understand that.

I do too. I’m still old fashioned in that regard.

It seems like we’re always pushing the envelope on procedural mechanisms, procedural persuasive devices. You mentioned Robert Dubose as having an impact on you earlier in your career. Robert is known for his rewired brain paper and talk that he’s given all over the state. It seems like your paper and Robert’s topic fit together because you’re trying to be visually persuasive. Am I right?

Yes. His paper’s brilliant and he recognizes that many judges are reading at least a large portion of their briefs on screen. That is a different way of reading than on paper. As an advocate, as Robert points out, you need to think about ways in which you can make it less monotonous for the judge and make it easier to digest and process the information. He talks about certain visuals that are an important part of how you can do that, but he makes a lot of other points about formatting, headings, and subheadings, white space, and fonts. He goes beyond visuals in terms of how you can make screen reading easier and more digestible for judges. I do agree, as he pointed out, visuals are an important part of that as well. Break up the pages and pages of text. It’s hard to read on-screen.

It is a very different form of advocacy and a more interactive one for the people reading the briefs to have to interact with things like that. It seems like it brings a totally different dimension of persuasion to it, which is cool.

One of the points I made in my paper, too, is having a little color in your graphics, whether it’s a table or a diagram or the images that you use that helps to break up the monotony of the black and white screen reading. I strongly encourage you to color whenever you can.

It’s like Legally Blonde at some point. We’ll get to the point where we can add a little bit of scent to give it a little something extra.

I hadn’t thought of that, but there you go, Jody.

You mentioned interactively, I had this vision of a like Disney World experience with click here and you get the scented portion of the brief or the audio. You get to hear the 911 recording. There’s no limit to where this goes. We’re only limited by the actual media that we’re using and what that ePubs formatting is that is coming. All bets are off as far as what people are going to be doing. I can see it, Jody. Mark Trachtenberg, the author of the first ePub interactive brief, standing in front of the podium, giving his summary of the argument.

I went back for the preparation for our discussion. I look back at the first full finance brief files in 2005 and the ones that we filed in 2015, so a ten-year difference. There’s an incredible amount of difference in terms of graphics, color, and images that were used in the second round as compared to the first round. A lot of progress made during those ten years. In the next ten years, we’re going to see some revolutionary changes in the way we draft our briefs.

In all business, it’s fairly easy to dismiss this and say, “I don’t have time for that.” It seems like you mentioned Justice Johnson’s comments about how effective the graphics were and Justice Busby clearly referring to them when asking you a question from the bench. It’s another one of those things. It’s like having a duty of technological competence. At some point, we’re going to be expected to broaden our skillsets and be able to incorporate these kinds of visuals in a way that helps break things down for the courts. One of our big challenges in our big jobs and what we do is to make the decision maker’s job easier. This thing, the storytelling aspect without using words or using a relative of words is quite powerful. People would be foolish to ignore it. We’re coming to the end of our time, Mark. One of the things we’d like to do is to have our guests offer an appellate tip or a war story that they’d like to share. Certainly, like many of our episodes, this one is chock full of tips. You’ve been an appellate practitioner for quite a good period of time. Does something come to mind that you might want to share with the audience?

I’ll give one tip and one war story. My tip came from a conversation I had with my daughter. Before I file any brief, I still print out a hard copy and go line by line and read out the text. I find that when I’m trying to read and edit on-screen after I’ve been looking at a brief for too long, I miss things. I still do that before I file and usually catch some mistakes. My daughter was horrified that I print out 50 or 60 pages of paper every time I’ve filed a brief. She’s very much an environmentalist. That generation doesn’t print out a lot of paper and edit that way. I still think that for an appellate practitioner, that’s a good tip to do one final read before you file in that fashion. My war story is I say this because I’m curious whether anybody has me beat in terms of length of an appellate argument.

In the VHSC case in the intermediate court, it was quite an experience. The total argument was three hours long. I was up there for 1 hour and 20 minutes. Before I stood up for the first time, Chief Justice warned all the counsel there, they had spent the weekend going through our briefs and they had a lot of questions. Be prepared to go longer than usual. The other warning he gave before I stood up is that, “By the way, once you sit down, you better be on your door because, in the middle of your opponent, when they’re making a point, we may turn you right there and say, ‘What’s your response,’ even as you’re sitting.” Being here the whole time, so I got up and sure enough, they did have a lot of questions and I would see the time diminishing 2 minutes, 1 minute on the clock. All of a sudden, it would jump by ten minutes. The chief justice had a little button where he could add 5 or 10 minutes. Every time I thought I was winding down, my time went back up again.

It’s like extended play on a video game. Hit the button and deposit another quarter here. You’re starting over.

I was up there between my initial argument and rebuttal for a total of 1 hour and 20 minutes. I’m curious whether any of your readers can beat that in terms of length of an argument.

TALP | Briefing Beyond Words
Briefing Beyond Words: Having a little color in your graphics, whether it’s a table or a diagram or the images that you use, helps break up the monotony of the black and white screen reading.

You have to be on your feet when you’re sitting down too.

Fortunately, it was a warning, but they didn’t employ that strategy. It did mean we had to be paying careful attention and we’re on guard for that. I don’t know about you guys, but when I finished a twenty-minute oral argument, I’m pretty wiped out and I’m done for the day. After 1 hour and 20 minutes, and then a four-hour drive back to Houston. That was a tough day.

It’s like when you argue a summary judgment motion that’s long and you’re doing the same thing. You might be giving a much longer presentation. I tell people, those are hard because I’m used to speaking in twenty-minute chunks. I can put together twenty minutes pretty consistently and be okay, but 1 hour and 20 minutes at the lectern, that’s impressive. I doubt anybody can match that, Mark.

It’s not a record I hold with pride. I would rather go for twenty minutes. It is a war story I can tell for my career.

That falls into the category of war story. I agree. Thanks for sharing that.

Thank you, guys, so much for having me. I enjoyed this.

We’re happy you could join us. This is a great topic and we’re grateful that you would come and share what you’ve learned. It’s very informative.

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

 Important Links:

About Mark Trachtenberg

Mark Trachtenberg, recognized as one of the top 100 lawyers in Houston and as one of the top appellate lawyers in Texas by Texas Super Lawyers, Thomson Reuters, has been involved in many high profile cases in Texas. Ranked in Chambers USA, Chambers and Partners (2019-2020) for appellate law in Texas, sources for the prestigious directory note his “excellent ability to see the broad picture and evaluate appellate issues before they even arise at the trial stage” and for being “very responsive, a superlative writer and a good ideas person.”

Mark is a partner in the firm’s appellate section and is board certified in civil appellate law by the Texas Board of Legal Specialization. He headed the firm’s Houston office as its administrative partner from 2012-2018.

A highlight of Mark’s career has been his work on behalf of Texas public schools, an opportunity that arose because of a law review article he authored on the history of Texas’s school finance litigation while at Yale Law School. Mark played a lead role in a lawsuit that resulted in an infusion of more than $2 billion for public schools in Texas. He later served as lead counsel at trial and on appeal for a coalition of 88 school districts in a second lawsuit challenging the constitutionality of the state’s school finance system.

Mark recently served by appointment on the Executive Committee of the Yale Law School Association and was selected as a member of the American Law Institute. He has been recognized by The Best Lawyers in America, Woodward/White, Inc., for Appellate and Commercial Litigation, 2016-2020; named a Texas Super Lawyer, Thomson Reuters, in appellate law, 2013-2018; and a “Future Star” by Benchmark Litigation, Euromoney Institutional Investor PLC, 2013-2019.

Mark also is a leader in the bar and in his community. He is the chair of the Appellate Practice Section of the Houston Bar Association, and recently served as chair of the Appellate Subcommittee of the Business and Corporate Litigation Committee of the American Bar Association’s Business Law Section. He also serves on the Board of Directors of the Texas Supreme Court Historical Society. Outside the office, Mark serves as a vice-chair of the Southwest Region of the Anti-Defamation League and on its National Civil Rights Committee, and is a member of the Education Policy Committee of the United Way of Greater Houston.

Mark writes and speaks prolifically on a wide variety of topics, with a recent focus on arbitration issues, oil and gas law, and Fifth Circuit and Texas Supreme Court trends.

Love the show? Subscribe, rate, review, and share!