Expanding Pro Bono A ...

Expanding Pro Bono Appellate Services | Mike Truesdale

December 16, 2021 | by D. Todd Smith

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Although Texas has more than 100,000 licensed attorneys, many of its residents’ legal needs remain unmet. This is particularly true in appellate courts, where fewer attorneys practice. Luckily, Texas lawyers, judges, and bar leaders have worked to connect unrepresented litigants with counsel willing to handle their appeals pro bono. In this episode, Todd Smith and Jody Sanders visit with appellate specialist Michael Truesdale about pro bono appellate services and programs in Texas, Mike’s involvement in launching some of those projects, and his continued efforts to raise awareness and expand their reach. Mike also talks about how attorneys can get involved and how pro bono appellate work can serve those needing access to legal representation while providing pro bono counsel with valuable learning opportunities and experience.

Our guest is Michael Truesdale from here in Austin. Mike, we’re glad to have you on the show.

Thanks. I’m glad to be here.

Before we launch into a few things that we’ve talked about visiting with you, why don’t you tell our readers a bit about yourself, your background and what brought you into the law?

I went to Texas Tech University and was a debater there. I was on the debate team. After I graduated from Tech, I stayed at Tech and went to graduate school in the English department. I was also tapped to be the Assistant Debate Coach. I took courses in Rhetorical Criticism that complemented the Literary Criticism that I was taking in the English department and was the debate coach for three years. Two years while I was in grad school, and then another year as a lecturer when I graduated. I always thought my career was going to be as a collegiate debate coach.

man sitting at desk with papers and writing on the wall behind him
Appellate Pro Bono: Being an appellate solo is either feast or famine. The workload would be huge at times. Other times, you’d be in a valley.

I enjoyed that and went to tournaments all the time. I spent a great bit of time at the Texas Tech law school doing research for either academic papers that I was working on or for topics the students were debating. At some point, it occurred to me that if I’m going to stay with debate as a professional career, I needed to decide to go to graduate school to get a Ph.D. or get a Terminal degree offered by some other alternatives. I knew a lot of my colleagues that were coaches with JDs and were on tenure tracks with JDs.

I came home one day and I said, “I think I’m going to go to law school.” My thought was I was going to go to law school so I could become a full-time debate coach. On the second day of law school, I attended a demonstrative moot court presentation. It was like the grownup version of what I was doing as a debate coach. Real-world implications, teamwork and everything about it. I fell in love with it. I devoted my spare time in law school to working on moot court teams. My heart was with the Appellate Advocacy Program.

I was very much blessed with two colleagues. My third year in law school they were both 2Ls but we excelled in a lot of different competitions and ended up going to the ADA. We won the ADA competition in 1994 based upon the outstanding appellate advocacy by my colleagues. My interest in Appellate Law led me to seek a judicial clerkship at the Supreme Court of Texas. I interviewed with a number of the justices and Craig Enoch offered me a position. My first job out of Lubbock was with the Supreme Court of Texas working for Justice Enoch. We moved to Austin in ‘94 and I’ve been doing Appellate Law ever since.

We could skip ahead in the story a bit because you are back working with Justice Enoch.

As background, after my clerkship I went to work for Hughes & Luce here in Austin for more than a year and focused on Appellate Law. There were trial matters that I got deeply involved with. It took me away from Austin for a long time. My heart was always with the appellate stuff. I worked with Hughes & Luce until 2000. In 2000 a group of eight attorneys at Hughes & Luce left to form a firm called Diamond McCarthy. I worked with Diamond McCarthy for ten years. I was one of the starting attorneys. Diamond McCarthy’s focus was pretty much on what we call who killed the company litigation.

When we started, this was around the time of Enron. There were a lot of corporate cases where malfeasance either by auditors, attorneys or other directors and officers caused the demise of a company and harm to investors. That was our bread and butter. I still emphasized my work on appellate as much as I could. I gave arguments in the Seventh Circuit, in East Lansing, Michigan at the Halls of Justice, which was their appellate court is called. I always thought I was going to see Aquaman walk out of the door or something.

In California, we did cases there. There was a period where I spent more time and made more appearances in the Bankruptcy Court of Chicago than I spent in any Texas appellate court. That was right around when I got board certified. It made me think about, “What am I doing with respect to my emphasis?” I really wanted to focus my emphasis on Appellate Law. In 2010, I hung my own shingle and I officed with Alexander and his group for a year and a half, and then I moved to another location downtown and practiced as a solo until 2017.

I kept in touch with my good Justice Enoch. We had lunches and talked about the pros and cons of being an appellate solo, the pros being I can control my docket. I could control how I took a case as a flat fee, contingency or some hybrid. The cons were that sometimes it was feast or famine. The workload would be huge at times. Other times, you’d be in a valley. We talked about that for a bit. We discussed whether it would make sense for me to come over to his firm and fill the valleys with working on matters with him and with his firm, and use their resources when I was at the peak to help level up my stuff. In 2017, I went over and joined Enoch Kever. I’ve been there ever since.

It’s cool that you started off your legal career working for Justice Enoch. I think you were one year ahead of me at the Supreme Court. All these years later, you maintain a relationship with your mentor, your friend and your appellate colleague. You’ve managed to work with him again in a situation that I can only imagine, calling it an appellate lawyer’s dream might be a little extreme.

I’m not sure what that looks like. It looks like different things to different people. It’s a great story to me to have you go back and work with Justice Enoch. They built a great practice over there. I’ve watched them startup from scratch and they’re a real powerhouse in appellate circles. I know they do a lot of government relations work, too. It’s a great shop.

I am blessed to work with a lot of top-notch lawyers, Justice Enoch, and all the other appellate folks in our group. I am humbled to be with them because they’re the best of the best. I learn stuff from them every day. We have an email group, we call it the Brain Trust. It’s like, “Does anybody know? This is my peculiar situation.”

We’ve been doing that since we don’t have the water cooler to walk around as much given COVID. What a great smart group of people they are. I’ve worked with some of the other folks in government relations. They’re the top of the top as well. The staff there is phenomenal. I have never worked for a better group of people or with a better group of people than I have at Enoch Kever.

Has it turned out as you thought? You’ve been in it, you’re in your fourth year or so. People who read this may know that I did something similar. I was at a firm, not multiple firms but then I hung my own shingle and did that for quite a long time. For many of the same reasons that you described, came back into a firm. Has it worked out the way you thought that you’d be able to capitalize on the firm’s resources when you’re in the hill part of your practice, and then when the valleys come around, as they inevitably do, you have the capacity to fill needs that other people have in the firm?

It has, very much so. I’ve taken the leadership on many cases where the staffing was stretched at the firm. I always had no problem accessing either support staff or junior lawyers to help me with matters. As an aside, and we’ll talk about this when we talk about my other personal interests. A couple of years ago, I broke my hip and I know you’ve had issues as well, Todd, but as I’m recouping from a broken hip, I had no problems whatsoever enlisting attorneys to help me with a very important mandamus that I had been hired to handle. We decided that with anesthesia it probably made more sense for this other person to take the lead on it while I was under the weather.

We can form a club, Mike, the aging surgical candidate appellate lawyers club. I’ve talked about it on the show before but we have that in common. For me, fortunately, it wasn’t a broken hip but it was something equally unpleasant. We’re good. We’ve recovered more or less.

The biggest impediment is that I look the TSA people in the eye and say, “Get your wand out because when I come through there, you’re going to be wanding me down.”

The word bionic takes on a little different meaning to you. People ask if you have implants or something like that. You have to disclose that at any rate. That’s great to hear. We hear a lot of discussion about, “I want to have my shop someday.” There is a lot of truth to it being idyllic in some ways. You control your schedule. You only answer to your clients and the court. There are big benefits to that, but it’s also a very lonely existence. The law is already a lonely existence in some ways. It’s great for you to have gone and made that move.

It’s funny because I don’t know if you’ve heard this from other people the way that I did but some people will ask me, “Why would you do that when you make a move like that? Why would you subject yourself to billable hour requirements, policies, partnership committees and management committees?” My answer is that it’s all a trade-off. You can certainly weather through the hills and valleys easier in a situation like what you’ve gone into. It sounds like it’s worked out great and I’m super happy for you.

Thank you very much, Todd. It’s been a great experience and I have nothing but good things to say.

I’ve been wanting to have you on the show anyway, Mike, because you’re a very experienced appellate lawyer. I like hearing your stories about going off to different states and working on these cases back in your Diamond McCarthy days. I saw that firm is still around. I know there was a lot of transition and change there for some time but I saw their name pop up. What I knew them to be known for is the disputes that you talked about.

In addition to your experience as an appellate practitioner, the thing that prompted us to reach out to you about coming on the show was the State of Texas largely has Mike Truesdale to thank for the State Bar Appellate Pro Bono Program. I don’t want to call you the grandfather of the program. Maybe the father of the program would be more appropriate. Tell us about it. Let’s start from the beginning.

Appellate Pro Bono: What works for the great state of Texas may not work elsewhere, but it has good ideas.

Pro Bono Programs were well established before I ever got involved with pro bono at the state bar level. The Austin Court of Appeals had a program that they worked with The State Bar, The Local Bar Association, and the courts to create a Pro Bono Program. It was the model for how programs have been implemented across the state. The way that the program and its inception started to work was if a pro se party was interested in obtaining the services of a pro bono counsel during the appeal, they could inform the clerk’s office when they filled out their docketing statement.

If they indicated as much and the clerk, the Third Court would forward the request to a committee that was set up and that committee can screen the application to make sure that the pro se litigant was qualified financially. They would do a preliminary review of the merits of the case. If it was filed six years after the deadline for the filing of the notice of appeal they probably sit on it, but otherwise they would refer it to our listserv of volunteers. The State Bar has accumulated a substantial database with the names of volunteers and their emails who have indicated their willingness to participate as pro bono counsel in matters on appeal.

The screening committee would review the matter and if it was appropriate for a pro bono placement, they would send an email blast to all of the volunteers and say, “Case 0300014 is pending before The Third Court of Appeals. The pro se party is seeking appellate counsel. Here’s the docketing statement. Here’s a little bit of background. If you’re interested in serving as a pro bono counsel, please contact the committee.” An attorney would respond. The attorney would be put in contact with the pro se client. They could talk about whether the pro bono counsel was willing to go forward.

Pro bono counsel had access to talk with the trial lawyer, if there was one, to get a sense of what are the issues. The court was very generous in terms of its participation and its cooperation with making this program efficient because what the court ended up doing is agreeing that if a case that was pending at the court was referred to the pro bono program and a volunteer lawyer agreed to serve as pro bono counsel, the court would not guarantee oral argument but it would give preference to oral argument in such cases.

The upside to that was that many appellate lawyers would agree with oral arguments being as scarce as they are and with oral arguments being a key requirement to getting board certification. Many qualified lawyers would agree to take a case so that they could get the opportunity to give an oral argument. I am laughed at because I say this so often it’s a win-win-win program. It’s a win for the pro se litigant because the pro se litigant gets to have his or her matter presented to the court by a qualified lawyer that’s going to do the homework, make sure there is a right standing review, proper issues, and everything like that, and not make an 88-page handwritten brief with crayon. It’s impossible to get anywhere with.

It’s a win for the court and the court staff precisely because they’re not going to get the handwritten crayon brief that’s gobbledygook. They’re going to get a good, competent brief as they get in the cases that they expect from a well-qualified lawyer.

It is a win for the lawyer who’s volunteering because the lawyer gets the opportunity and exposure of getting to handle an appeal that the lawyer may not otherwise get given their level of experience with a firm or the realities of the court in terms of how often they’ll take cases. Everybody benefits from it. I have had talks with clerks at various courts about the program. I’ll back up to this in a minute, but I’ve had talks with various clerks at the courts that indicate the administrative burden on the clerks is de minimis. It’s a minimal impact on the courts in terms of how much time and effort they have to spend to accommodate the request for pro se litigants seeking pro bono counsel.

All they have to do is review the docketing statement and input the data they’re going to input anyway with section ten of the docketing statement is checked. They may have a note, “We’ll make a note on the file and we’ll email this off.” The commission will report back, “We weren’t able to place this and then we’ll keep it going.” They are able to place it and somebody will file a notice of appearance. I’ll segue a bit more into how that program expanded from my view and participation. That’s why I’m not the grandfather or the father, I’m the nephew. I have nothing to do with that. It was put in by people with more creative brains than mine and had great ideas. They had that program in place.

You need to take a little more credit than that, though. Hopefully, what you’re about to do is to explain how that program from The Third Court of Appeals blew up and expanded into other courts, including our Supreme Court.

In 2011, 2012 that timeframe, I started doing like a coach pro bono appellate section of The State Bar. I started working with Blake Hawthorne on coming up with some solution to the number of handwritten petitions for review that were filed with the court. When I was a solo and could do this, I kept track of all that were being filed. I go down them chronologically. It astonished me that in one period, I forgot the numbers, 36% of the petitions for review were handwritten or they were by pro se parties. Around that time, the Supreme Court came up with its pro bono pilot program.

The pilot program was set up so that if a petition for review proceeded to the point where briefing on the merits was requested and either party was a pro se litigant, the Supreme Court would refer the matter to a pro bono liaison. I’ve been serving as the liaison since 2011. The liaison would then reach out to the members of the listserv and say, “The Supreme Court has requested a briefing on the merits in this case involving a pro se party. If you’re interested in serving as pro bono counsel, please let me know and I will put you in touch.”

When I could send those emails out, I would hit send, go get a cup of coffee and come back. I would have five Texas lawyers volunteer to say, “I will take this case.” It says so much about the Texas appellate bar that they were willing to do that. In a selfish way, if the Supreme Court is looking for counsel because briefing on the merits has been requested, that’s an indication that this is a case that has the Supreme Court’s attention, so it’s a good case to get involved in.

If you’re going to get involved, that’s the way to do it. The problem that Blake and I talked about was that the pro bono pilot program addressed the need for a pro bono counselor once a brief on the merit was requested. It didn’t do anything at the front-end in terms of helping the person prepare a petition that might generate a request for briefing on the merits. I worked with Blake, and we came up with some templates that were on the Supreme Court’s website and they were all blessed by the Supreme Court. The justices reviewed them and made comments on everything.

They participated very heavily as well, but the templates provide almost a fill-in-the-blank ready to start a petition for review. “These are the sections that you need. You need to put the district court’s name here. You need to put the Court of Appeals’ name here. What is the issue? What are you complaining about?” It was a good way for people to say, “If I’m going to file a petition, this is what it should look like.” They can all work on that.

While we were working on that, I was over at the court one day. He talked about a call that the court received from a pro se litigant in Canadian, Texas, who only spoke Spanish and was looking for a pro bono lawyer to help her in the diverse appeal pending before the Amarillo Court of Appeals. Blake and Bianca both were saying, “It’s a shame that there is no pro bono program up there.” I said, “Blake, I can get a lawyer for you. I can get a lawyer for that client in a heartbeat.” When I got back to my office, I sent an email to the listserv. I said, “There is a litigant in Amarillo that needs pro bono counsel in diverse appeal.”

I got contacted by a junior lawyer at Vinson & Elkins in Houston, Texas, who said, “I will take this case.” Took it and handled it from top to bottom. I thought that was amazing that our volunteers could do that. By that time, the Third Court’s program had expanded. There was one in Dallas, some other programs in some of the more populated areas. I did some looking and I said, “The demographics of Texas where the Court of Appeals did have pro bono programs reflected 60% of all Civil Appellate filings in a given year between the Metropolitan areas. That 60% of litigants had access to appellate pro bono counsel.”

The numbers were not right but that told me that 40% of Texans did not have access to appellate pro bono programs. You ought not to have your litigation decided differently because you live in Texarkana instead of Garland. I was trying to think about how we could address that. I coordinated with Blake and I went to the appellate court clerk’s conference in Houston. The first time I did that was in 2012. I walked through the same spiel I’m giving you guys now and said, “This program is easy.” Jeff Kyle was there. I said, “He can vouch for how administratively easy this is to administer.”

Jeff Kyle is the clerk of The Third Court of Appeals for everyone’s clarification.

I said, “The only thing that will cause a burden on you is when the Office of Court Administration is about to make the changes to the docketing statement.” The docketing statement has a pro bono section on it but it says if you’re a litigant in the 3rd, 5th, 1st, 14th Court of Appeals, please read below. Otherwise, go to the next section. I said, “If you guys want to participate, you don’t have to have your own program. We’ll take care of that for you if you’ll put your name on that docketing statement.” If people come in and ask you, tell them, “Give me your name, we’ll forward your information on.”

With that in mind, we started getting more requests from clerks in El Paso, Corpus and elsewhere. Some courts opted to create an informal program as they did in Amarillo. The point is that through doing that, we were able to provide access to the power of pro bono counsel to litigants from Texarkana to Tyler, to Waco or wherever the need exists. If they wanted it, they could get it. That was the gist of the expansion of the pro bono program.

I was looking at a docketing statement. For those who don’t practice in Texas, our docketing statement is an administrative tool. The parties provide basic information about the case to the court so that all the information can be entered into the court’s docket. The appropriate people were contacted and the court knows a bit about the case. I saw on the form that I was looking at, there are still several of our Courts of Appeals that aren’t on that list. Is it that they have created their own program separate and apart from the program you helped to get going? There are some Metro areas, I’ll call out the Fourth Judicial District. The Court of Appeals is not there.

We are working with San Antonio on this very project. The co-chair of the appellate section and I have been in contact with Justice Watkins. There’s an enthusiastic interest in it. Sometimes things move slowly, but we expect to get something taken care of relatively soon with them. They have to coordinate with all the courts. I don’t want to show my hand too much but a number of years ago, I contacted Chief Justice Eastland and I said, “What advice can you give to me about making this pitch to the courts?” His advice was to talk to the chief clerk, sell it to the clerk, and the clerk will bring it to us.

I’m going to say this wrong and I hope I don’t offend anybody. We’re detaching that from the realities of what happens to the clerk’s office that we don’t have a dog in that hunt. What the clerks do is going to impact them more than it’s going to impact us in terms of the workload. If you can sell to them, they are going to sell to us and we can back such a type of a program. I thought that was very helpful advice because when I made these pitches to the clerks, either in Houston or Fort Worth at the conference, it was the clerks and the staff attorneys that were following up with me and saying, “I’d like to contact you on this. I want more information because we can make this happen.”

peach cut out with the words "Pro Bono" on top of a keyboard
Appellate Pro Bono: This program is widely recognized and it does nothing but get better as it keeps on pushing forward.

The program has worked well. We get recognition from pro bono programs in bar associations from across the country. I did a presentation with the Hawaii pro bono group in Pittsburgh a couple of years ago. We were talking about how it’s done in Texas versus Hawaii. Two completely different size states in terms of population, bar relationships. I have talked with the representatives from Montana, where the Civil Appellate Section of the Austin Bar Association has more appellate lawyers than the State of Montana.

What works for the great State of Texas may not work elsewhere but it has good ideas. The involvement and interplay between the bar association that wants to work on this. The courts and the members who run a volunteer. Those three groups working together can make a program successful, regardless if you’re in Texas, Wyoming or anywhere else.

I’ve been on the screening committee for the Fort Worth Court of Appeals pro bono program for years. It is interesting. We don’t delve into the merits unless there’s something that’s obvious, that’s a defect or something. We look at it and does it meet the requirements? Has the person filed their affidavit of the indigent? All the checklist things. If it does, then we farm it out. More often than not, somebody takes those cases if they get farmed out from us.

I wish I had numbers to give you about the number of cases we place over a year. I used to be on top of that when I was going to fill out the malpractice insurance, which is also a perk that I haven’t talked about. If you participate in the program, you receive malpractice insurance provided by The State Bar of Texas. Every year we need to fill out the applications and we would have to list the ballpark number of appeals and a breakdown of the types of cases.

Some of the cases, the Family Law, a lot of them were heartbreaking. A lot of them the people got freed up and got the record wrong when they went to appeal to the Court of Appeals or missed a briefing deadline. There’s not much you can do but sometimes you can. A lot of Family Law. The cases are heartbreaking.

It’s good to see that the bar is stepping up to provide representation in some of the most important cases that you’ll ever handle. If you handle the pro bono appeal, I’ve handled a ton of appeals and I hate to lose appeals. When I do, there are times where I tell a client that you’re not going to get that check that you thought you were. It’s been appealed. When you can tell a pro bono client that they do get to keep their kid or they’re going to get their Social Security benefits or something, that’s remarkable. There is nothing that feels better.

What would you say to someone who maybe hasn’t done a lot of appeals but wants to get into it? Are there fail-safes in the program to keep somebody who doesn’t necessarily know what they’re doing out there?

We have set it up so if a party wants to take an appeal but doesn’t have a lot of experience. There are other folks who have said, “I volunteered to assist on this case. I don’t want to first chair it but if there’s a baby lawyer that wants experience, I’ll be happy to mentor them.” What a great experience working with a lawyer from another firm. It’s going to give you skill sets and insights that you may not get when you’re captive to your group in your shop.

It combines a couple of our favorite things on our show, access to justice and mentoring. That’s a wonderful combination so that less experienced attorneys can dip their toes in the water for handling appeals. You pointed out, Mike, getting the benefit of preferential treatment for oral argument. It’s a great way for someone to do that. To get some experience writing briefs and handling appeals first chair, which is very difficult to do in a lot of practice settings because the money is so significant that’s at stake. The younger lawyer is not often put in that situation unless they’re being closely supervised. It is a wonderful program.

This was a little bit different. Every time I have argued before the The Fifth Circuit, before I have given my argument, one of the cases inevitably involves a court-appointed attorney because of conflicts that the public defender couldn’t represent a criminal defendant. The courts are uniformly generous in their thanks to the attorneys who do the job. When I was appointed to handle a criminal appeal, I don’t know anything about some of these areas.

I’m going to make sure that the I’s are dotted and the T’s are crossed when I go to Federal court. It may not be the most efficient thing in the world. I’m not getting paid for it but I’m going to do the homework. That’s how a lot of these litigants are. I know that the Texas appellate courts feel the same way with the attorneys that physically volunteer to handle appeals. They’re very appreciative. They’re always very quick to note that for the record.

The two of you can educate me on this process a little bit because it’s been a while since I’ve taken a case in the program. Is there any centralization of the assignment or the intake of the pro bono case? We merged the Supreme Court pilot program, it seems like, with some of what was going on in The Third Court of Appeals, and then expanded it beyond The Third Court we’ve got The First and The Fourteenth in Houston, The Second in Fort Worth, The Fifth in Dallas and a few others that are handling these cases. How is that handled? Does it depend on having a local bar representative like Jody, who is doing this on a volunteer basis in Tarrant County or in The Second Court of Appeals District, or someone doing it more on a statewide basis like you used to do, Mike?

I’m going to defer to you in a second. I will tell you that when I was still on the front line, we were trying to consolidate the listserv. We didn’t have the Dallas listserv or the Austin listserv. There was one general one, because again our attorney from Houston represented somebody in Amarillo. Geography isn’t as much of a factor, although I would expect this is where I’ll pitch it to Jody, that if there was a PO posted from Fort Worth. There were Fort Worth attorneys that were wanting to volunteer that they would probably receive the preference to handle the case over somebody else.

It’s my understanding and I haven’t checked into this in a few years when we push it out, it also ends up going on the state list too. I may not have that correct but I think so. Generally, the clerk’s office sends it to the designated person who for a while has been at the Chair in County Bar Association and they forward it along to the committee.

We make a recommendation one way or the other. The Chair County Bar person sends the letter to the Clerk’s Office that simply says they will or won’t have pro bono counsel. That triggers it. Internally, once we make our recommendation to have it, I think it goes out to the listserv. I don’t know if we have a local one but I believe it gets pushed out with the state as well.

That’s my next question is, how does someone interested in volunteering to do this work get on that list so that they’re getting these messages?

You can go to the Texas Appellate Section’s website, Tex-App.org, and on the Pro Bono tab there is a link that says, “Are you interested in participating?” You can click on that and submit your information to be a volunteer. It will ask you what cases do you want or anything like that. Which I think is an obsolete component of that sign-in link because if you’re interested in getting an email, you’re going to get an email on the cases that come out. You’re not going to get overwhelmed with emails. This isn’t like you’re getting fifteen a day or anything like that.

You’ll see the emails when they come out and you can delete them or read them. Iconic aside, I have had several pro se parties fill up that form and submit it, “I’m interested. What’s your address?” It’s somebody’s beauty shop or something. I said, “Unless you’re Saul Goodman working at the nail salon, you are probably not the person we’re looking for to fill this out but I will pass the information on.”

I’m going to admit that I have not gone and filled that form out since changing firms. If nothing else but the pleasure of visiting with you and hearing about the program, Mike, comes out of this conversation, when we’re done, I’m going to make sure that I get my info in the system again. If you all haven’t chased me down to update my email address. I’m going to make sure I do that.

I would certainly encourage having handled some of these, it is exactly right that there is a competition to take these cases. It’s incredible. You get not only the folks who are eager to learn but you get some established appellate lawyers chiming into. This is one area where no one’s in competition with each other, except for maybe the opportunity to get the pro bono work.

There is a great opportunity to collaborate. If it’s a substantive area you’re not familiar with, you need help with that. It’s among one of the best features of our State Appellate Bar, our Local Appellate Bars. It’s the ability and willingness to kick in and take on a tough case that laypeople are in a situation where they are out of their depth. It’s so great to see that this program has continued to flourish for all these years.

I sure appreciate that, Todd. I’ve gone to Pittsburgh; Richmond, Virginia; and Houston. I’m hoping to go to Minneapolis in the spring to talk about the program. “This is how we do it in Texas,” John said at that ABA conference or something like that. “This is a way we could do it better.” This program is widely recognized and it does nothing but get better as we keep on pushing it forward.

Whatever we can do to help promote it. We’re all about efficiency and making things better here, too. It’s wonderful. I want to transition as we start nearing the end of our time together. I do want to make sure we talk about a couple of things that make you interesting besides being, the pro bonos are at various points in time in Texas. That is your particular interest in two things. One is cycling and another is rugby. I knew you to be a cyclist.

I knew you as being the guy that would ride his bike to and from work. When we were on the Appellate Section Council together years ago, you would ride your bike to council meetings. We haven’t been together in a couple of years. Why don’t we start off with the cycling and how you got started on that and what you’re doing with that these days, especially in light of your hip replacement?

When I was in graduate school, I rode a mountain bike everywhere in Lubbock, Texas. I lived on my bike.

A mountain bike in Lubbock, Texas, isn’t that ironic?

When we lived here in Austin, I did some mountain bike riding in different places. In 2006, I had pretty catastrophic knee surgery. I tore the meniscus. When they went in for the surgery, they said that there was no cartilage in my knee whatsoever. They did this procedure where they put fluid in my knee that was going to take the place of cartilage. I had to do stationary bike riding for a long time as physical therapy.

One day it occurred to me that it is offensive to ride a stationary bike in Austin, Texas. I went out and bought a road bike and got addicted to it. I started riding my bike on the weekends, on long rides. I rode my bike to my office every day when it was on 360. When I moved downtown, every day I would ride rain or shine from Spicewood Springs and Mesa to either 6th and Congress or 8th and West Avenue.

That’s hardcore.

It was so relaxing. I was doing 18 miles a day. I was doing 5,000 miles a year. It was a way to decompress when I was riding after work for the day. I kept changes of clothes in my office. Sometimes I would change into them other times I wouldn’t, depending on if I was a solo or if I was going to see anybody. When I moved over to Enoch Kever, I was riding home one day. For those of you that know the Northwest Hills area, I was riding my bike up, which is a very steep hill. I had saddlebags on my bike with a big notebook. I was probably carrying maybe 30 pounds of gear.

My Achilles tendon didn’t appreciate that. I ended up being in a boot for five weeks and that kept me off the bike for a while. The following year, I broke my hip. When we segue to rugby, there’s probably a bit of a relationship to that. I was off the bike. I went from 5,000 miles a year to 17 miles. It bummed me out. I’m slowly but surely transitioning back into riding. I haven’t gone the century ride yet, now that I’m riding again. I’m very much hoping to do so. I had some issues with the new and improved bionic hip of clipping in and out of pedals because the portion on the leg when you’re twisting it was something I had to work through to physical therapy. I’m getting there.

I look forward to seeing you back on the bike riding around downtown.

There’s one story that when I was downtown one time, I was coming down Shoal Creek. I was in a goofy mood. We were at some holiday store and I bought this great big red thing that’s supposed to go on your fireplace mantle. It looks like an upside-down Santa hat. I said, “The opening of this is big enough to go around my helmet.” I got some zip ties out and I put the Santa hat over my helmet. I’m riding Downtown, down Shoal Creek from Spicewood Springs. I get in front of the courthouse at a stoplight. This guy pulls up next to me and says, “Were you on Shoal Creek a while ago?” I said, “Yes.” He goes, “You beat me downtown.” That was my vindication. “I know it was you because you had that goofy hat on.”

We hadn’t even gotten to the war stories segment yet but that’s almost a war story. Beating the guy downtown on your bike. That’s great. Love it. Talk to us about rugby because this is something that I didn’t know about you.

I started playing right at the end of my undergraduate career at Tech. I played through grad school and through law school. I loved it. I very much enjoyed playing it. I’ve enjoyed watching it. Both of my sons played at their respective colleges. My youngest son is playing at Texas State. My eldest son played at Reed College in Portland. Our holiday picture was the three of us in our respective Texas Tech Rugby, Reed Rugby, Texas State Rugby T-shirts holding our team’s rugby balls. We followed as a family. My wife hates us or hate sports as a general. She’s bored by them but loves rugby.

She and I went to Washington DC and saw the US men’s team play the New Zealand team. I have never in my life seen a sporting event that was so lopsided. We got clobbered. The New Zealand Rugby Team scored more than the USA Basketball Team scored when they played New Zealand in basketball. It was a bad day for the US Rugby Team. My son played at the National Tournament every year. He went to Las Vegas and played in it with his school and they did great.

The amateurs play during the day and the international teams play at the stadium in Las Vegas at night. We had a blast doing that. That’s our family thing. We’re big on rugby. Once you watch it and figure out the rules, it’s hard to go back to football. I’ve got to say for me. I know it’s unpopular for me to say that in the great State of Texas. I’m a Red winner in Austin. I’m definitely living in a holy land.

We’re reaching the end of our time. Our tradition is to always ask for a tip or a war story. Do you have something you’d like to share?

How about just a tip? This is a throwaway. I’ve used it to start papers before. It goes back to a quote from Justice Pope. When a young lawyer was asking him for advice on, “What’s the one piece of advice you can give me to best improve my chances for success on appeal?” This may be lore but he apparently said, “Have the word ‘Appelli’ on all your client’s name.”

He wasn’t wrong.

That was his words for advice.

Mike, thank you so much.

It’s been my pleasure. I enjoyed this. Thank you, guys, for doing this.

Sign up for the pro bono list if you haven’t signed up, Todd, or anyone that’s reading.

I’ll do it so I get some preference, hopefully, probably not. I’d be glad to have some competition for that. Mike, thanks again. We appreciate you coming on.

Thank you very much. I enjoyed it very much.

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About Michael Truesdale

Mike is an appellate lawyer with extensive experience in prosecuting and defending appeals on behalf of plaintiffs and defendants. In trial courts, he focuses on error identification and briefing/arguing issues with appellate implications. He has worked on numerous cases before the Texas Supreme Court and handled appeals in nearly all Texas intermediate appellate courts. Mike has led appeals in other states’ courts and in the Federal, Fifth, Sixth, and Seventh Circuit Courts of Appeals, and has authored briefs before the U.S. Supreme Court. He also actively advocates for the developmental expansion of appellate pro bono programs across the state and nation.

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