The Evolution of Tex ...

The Evolution of Texas Appellate Practice | David Keltner

January 12, 2023 | by D. Todd Smith

Texas has one of the most developed appellate bars in the nation. That comes from years of dedicated attorneys working to implement standards and practices that have benefitted the State’s legal system. David Keltner, a partner at Kelly Hart & Hallman, is one of those attorneys. David is a living appellate legend in Texas and has helped shape appellate practice in Texas for more than 45 years. He joins Jody Sanders and Todd Smith to discuss his background as a practitioner and appellate justice and his firsthand experience watching the evolution of appellate practice in Texas. He also shares his insights of creating workable approaches to appellate briefing and arguments.

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The Evolution of Texas Appellate Practice | David Keltner

Our guest hopefully for a two-episode arc is someone who anyone that does Appellate Law in Texas is going to know. I’m going to introduce him by stealing and paraphrasing something he said about his own mentor. This is the person who has taught me everything I know about Appellate Law, but not everything he knows. He’s my friend and partner, David Keltner. David, thank you so much for being here.

Jody and Todd, thank you for asking me. I appreciate it.

You’ve got to hold something back. You can’t show all the cards right away, can you?

I’ve worked with David going on 16 or 17 years now. I don’t even know. It has been a long time and there’s still plenty for me to learn because you’re constantly teaching me stuff. Probably, a lot of our folks know exactly who you are. Still, if you could spend a little bit of time and tell us a little bit about yourself and maybe some of your background, we would love to hear about that.

Let’s start with legal background. That’s the most important thing. I got out of law school in 1975, which seems like it was in the last century. It was an interesting time. I got out of law school in the middle of a big recession, which reminds us of now. People were wondering whether the economy would recover nicely. It did not. It ended up in the 1980s crash with the real estate issues and went down pretty hard, especially in Texas. I graduated in ‘75 and worked briefly in London. I took a job with Shannon, Gracey, Ratliff & Miller, a Fort Worth firm that no longer exists but was a remarkable place. I did a lot of insurance defense work.

That’s where I cut my teeth on litigation, and that’s initially what I did. I was able to try a lot of lawsuits. That was a golden time for a trial lawyer because you could get to trial doing worker’s comp and small things like that. They got you in front of juries where you got to face a jury looking back at you and facing you down. That was a great experience for me.

I got to try a bunch of lawsuits. I’m embarrassed to say how many, but I always wanted to do appellate work. For the longest time, I dealt with jury trials. The interesting thing was I had not had a course that dealt with jury submission in law school. The court’s charge was something that was completely unfamiliar to me and I had to learn that.

With the help of Kleber Miller and some others with practical help and suggestions of what I could read like Gus Hodge’s book, I eventually learned that process. I learned that you could have a great impact on what a jury might decide if you could ask the questions right and get the right instructions. That made a difference to me as well. It got me closer to appellate work, which I wanted to do.

How did you get into appellate work?

It was an upsetting experience for me. I wanted to do appellate work and was trying a lot of lawsuits and my mentor, Kleber Miller, looked at me and said, “I’ve looked around the state and the appellate lawyers I know have no personality and are dull as they can be. You have at least some personality. You can’t be an appellate lawyer.” That was funny, and this was over a drink. He then said, “Seriously, it’s an unholy marriage to do both trial work and appellate work at the same time because the deadlines don’t mesh.” On that, he was absolutely right.

What happened and where I was very lucky was we had a man in the firm named Gene Dozier, now deceased. Gene had clerked with the Texas Supreme Court. For the most part, he did appeals or assisted trial lawyers who did appeals. He was the go-to guy. He left about three years into my stay at Shannon Gracey. I secretly went behind Kleber’s back to all the lawyers in the firm, especially when I knew they had a rough experience or very good experience. That allowed me to get the appellate work. It was almost like I hung out a shingle that said, “David Keltner, Appellate Lawyer.” Before anybody knew I wasn’t, I was.

That’s how I got involved. What happened during that time was another golden time. You’re going to hear me later tell you that currently is the best time I’ve ever seen for appellate lawyers. During that time, we had a change in the Supreme Court. Part of it was Democrat to Republican, but it was a more basic change than that.

In the ‘70s through the mid-‘80s, there was a time in which the standards of review for legal sufficiency were loosely interpreted and probably bastardized. In fact, the city of Keller got that straightened out. Nonetheless, it’s a time when if it went to a jury, your chances of reversing it were slim. You had to have absolutely no evidence whatsoever.

It was one of those things where times were changing, the courts were getting more actively involved in the quality of evidence as well, and rules of procedure became important. It’s far different than now. The plaintiff’s side of the bar was much more effective in using appellate waiver than we see defense lawyers use it. It’s equally wrong at both times. Nonetheless, that was the case. I’m going to mention a couple of my friends. That is Rusty McMains, who I refer to as the late great Rusty McMains. He understood the charge almost better than anybody in Texas, including judges. He understood how it was possible to waive error and have a hawk-eye look at that.

A lot of cases were decided on waived objections. Island Recreational is a classic example of that. We went from a broad form submission issue that got started during that time with a universal acceptance of that view. During that time, it was great to get into appellate work and appeals started having much more impact than they had before. I was very lucky to hit that time in the late ‘70s. Things heated up and they continued to do so all the way through the ‘80s. There were some significant changes during that time that made a difference.

The Texas Supreme Court in particular changed a lot during that time.

The interesting thing was it was a change in different viewpoints. While the Texas Supreme Court had been primarily totally Democratic for that time, virtually every judge in Texas was a Democratic court. There was a conservative element, and we could go through the judges individually, that was on the court, and basically conservative about creating new causes of action.

They were conservative about error preservation and the like. In the early ‘70s going into the early ‘80s, some new people got elected through statewide politics that were more liberal. We got a number of people on the bench, some are former state senators, and several former state representatives went on the court. In fact, there were two state senators and they had been more on the liberal side of the party.

That started a time when plaintiffs were very successful in the Supreme Court. They were successful in two ways, though. They were successful, I believe correctly so, for if a judge had granted a JNOV and got that reversed, or someone had not been given a jury trial and got that reversed, or zero verdicts and sometimes getting those reversed. Those are appeals that were unheard of prior to that.

We also had a fairly conservative legislature during that time. The Supreme Court created new laws on three separate occasions. They pointed out that the state legislature had not been able to pass a Product Liability Bill, a Wrongful Death Act that sets what the actual damages were, and there was one other that I can’t recall, but there were three during that time. The court was not hesitant to step in and say, “We need to get this rectified.”

Some of it, you could very much understand. For the longest time, a parent could not recover for the loss of an adult child. Children had difficulties in recovering sometimes other than the Wrongful Death Act, which is constitutionally based. They had a difficult time recovering for the loss of a parent. Bystander Recovery was unknown at that time. That’s the third one, and we created a Bystander Recovery Standard that still stands now.

The law was changing fairly rapidly, and not necessarily by the legislature itself but often by courts that were subsequently dialed in by the legislature. I will give you one classic example. With the advent of DWI cases of the Mothers Against Drunk Drivers. There was a social movement designed to make drunk drivers responsible for the damage they caused and, more importantly, to prevent drunk driving.

Appellate Practice: The law was changing fairly rapidly, and not necessarily by the legislature itself. This is often done by courts that were subsequently dialed in by the legislature. 

The court came up with a number of causes of action that one could bring against social hosts or against a drinking establishment. That lobby in the legislature was so huge that they were able to reverse those, which eventually turned into Supreme Court decisions interpreting those that can limit the amount of liability those people could have. Those things were going on in the ‘70s and ‘80s that were dynamically changing the law.

Later in the ‘80s at a fairly young age, you decided you wanted to be on the Court of Appeals.

By that time, I had started doing appellate work. While I was still trying lawsuits occasionally, I was doing much more appellate work than I had been doing. I was beginning to attract some appellate work outside of the firm. Instead of doing Shannon Gracey’s appeals, which were significant, I was doing appeals for other people and sometimes friends from outside of Tarrant County, where we were trying to guess what the Supreme Court was going to do.

Everybody spends some time thinking they need to be a judge. I certainly was thinking that way. I had been encouraged by people to run for a trial bench or be appointed, and I had resisted that. Luckily for me, Walter Jordan had been on the Fourth Court of Appeals for a long time and he had been a long-term District Judge. He had over 40 years of judicial service by the time he retired.

He called me to let me know that he was going to resign from his position early because of health issues. When he announced his resignation, it was right before an election. The primaries were coming up, but they had a very brief opening. The filing deadlines had passed. They opened that again, and seven of us got into that deal.

Fortunately for me, all but one of them dropped out. The guy that stayed in was a guy named Fred Fick. He’s a great guy. Fred was the Chief Briefing Attorney at the Fort Worth Court of Appeals who had been encouraged by the Chief Justice to throw his name in. He eventually dropped out about a month before the actual election.

It was in May in the primary. I was in a deep spot. His name was not off the ballot. His name was still on the ballot and in my mind, “If I lost to Fred Fick, I’m going to have to leave the state.” Luckily enough, I won and my immaturity showed in my opinions. I got on the bench. That was a Democratic primary and I did not have a Republican opponent.

Governor Mark White called and said that he would appoint me early if I wanted. I was trying to finish up and so I convinced him to let me join the court in September, and Judge Jordan agreed that he would stay on until that time. That all worked out for me and it was a good thing. I very much enjoyed my time on the court, but they still celebrate my resignation day as a court holiday. They were glad to see me gone.

Your stories about serving on the court make it sound like a very fun workplace.

It was. I was very lucky. We had a fascinating group of judges from diverse backgrounds. This is going to sound strange to our audience, but this was only four years after the Court of Appeals got criminal jurisdiction. We used to have a bifurcated system that was not only the Court of Criminal Appeals and the Texas Supreme Court. The appeals from the district court in criminal cases went directly to the Court of Criminal Appeals.

When we got that jurisdiction, the number of people on the bench expanded. That was new to me. We had several people who had done nothing but criminal work. We had two primarily domestic relations lawyers who were elected directly to the court and did not sit on a trial bench beforehand. Everybody else but me was a former trial judge, which is very helpful.

If I could pick the ideal judge, I would want them to have extensive litigation experience. I’m not sure how extensive litigation experience you can have these days without being a trial judge. They made a big difference but it was a disparate group, and we had a lot of fun. Jody is responding to the appellate section did a piece with all former judges and they got me. Unfortunately, you had done David Farris before and had learned all of our pranks while we were up with the court.

It’s monastic. One thing I don’t think lawyers truly understand is being on the court is a monastic existence. It truly is. You were isolated. I had grown up on trial lawsuits. My friends were trial lawyers. The people I socialized with were lawyers, mainly trial lawyers. All of a sudden, I couldn’t talk to them. I certainly couldn’t talk to them about their cases or the case they just tried because they might be coming to our court. That was isolating. We came up with a number of diversions to try to ameliorate that factor. Sometimes we did and sometimes we didn’t. It was a good experience.

Appellate Practice: Lawyers don’t truly understand that being on the court is a monastic existence.  

Mostly what I learned there was what judges need to hear to make a decision. I thought I knew and I was wrong. It requires something much different than what I expected, but it was a very good time. The bad thing about it and what I disliked about it was the political aspect of it. It wasn’t so much the politics. I can understand the difference between those types of things and points of view. In fact, during the time I was on the court, the Republican Party became much more powerful.

They swept out all the judges’ positions in Dallas and eventually in Houston. Fort Worth was a little slower to change, but what they did there was recruit the sitting judges, with the exception of one, and transferred them over en masse to the Republican Party. There was going to be a change. I felt that the Democratic Party got me there. I didn’t feel comfortable changing parties, although there’s no such thing as Democratic justice or Republican justice.

What that meant was the cost of an election went up dramatically. It’s hard to believe. Our teacher, Howard Fender, had been a very active Democrat. He had been the district attorney of Tarrant County for a time and a district judge and was defeated by a Republican. Everybody thought that was going to be very difficult. It turned out it was not that difficult at all. Todd was great. Everybody got along with him. We made sure that he felt welcome. He appreciated that, but at the same time he did his job very well. We all were very supportive of each other and it made a dramatic difference.

Any time there’s a change in political parties in the judiciary, it gets new people an idea that they can run. We’ve seen that in Houston and Dallas. Some people had experience and some didn’t have any at all, but every race was going to be contested. You are going to have to raise large sums of money to be able to get the word out. What does the judge campaign on? “I can be fair.” “I can be more fair.” It’s those kinds of things. During that time, the Code of Judicial Conduct prohibited taking positions on any matter that might come before the court. That since changed, but it was an absolute at that point. Even now, that was one of those issues.

You get calls from groups who would call and say, “We want to support you. How do you feel about abortion?” You’d say, “I don’t think it’ll likely come before the court, but if it does I can’t comment on it.” It was very upsetting to me. You get the comeback, “We’ve talked to him and he said that he’s against abortion and would never vote for it.” What do you do? They then say, “We’d like to be for you but if you can’t tell us how you’ll vote, we won’t be.”

During the same time, there was the first shot at medical malpractice reform. Doctors or groups would call and they want to know whether you could support the constitutionality of caps on actual damages or punitive damages. That was something I felt I couldn’t commit to one way or the other. That was problematic. I had represented a large number of doctors during my time in private practice. They felt disappointed that I wouldn’t take that view, but I felt the code prohibited it.

I was uncomfortable in that regard. Unfortunately, I do not feel uncomfortable raising money for other people but raising money for myself was painful. I would stay up at night knowing I was going to make a call the next day to ask for money from a particular person. I felt bad about it. I had lists made up of people who had appeared in front of our courts who I wouldn’t call. I learned from my friends that some of the other members of the court and other courts were using that same list to call those people. It was difficult for me, but having my hand out for money was very difficult.

We had a resignation from the Supreme Court. It was filled by the appointment of Eugene Cook from Houston by Republican Governor Bill Clements. What happened later was within a matter of months, there was another opening. The Democratic Executive Committee of Texas was again outside the time of the primary. The executive committee picked and they offered me the position of running for the Supreme Court, which is all I ever wanted.

The night after we had an informal meeting with the executive committee, I stayed up and talked about it. I knew that the rest of my life would be raising money. I went in the next morning and asked to be relieved of that and was. I have not regretted that decision at all. I would have run against Charles Ben Howell, the guy in Dallas. The Democrats won that race. That was Bob Gammage and another member of the legislature that got on the Supreme Court. I was saved because, eventually, as a Democrat I would have been wiped out in any event, but my service on the Court of Appeals was a lot of fun.

You mentioned that you learned what justices needed to have to make decisions. It was something that you didn’t necessarily know as an advocate before you went on the bench. Will you spell that out for us so that we know?

I’ll tell you what I think it is. I think all judges are a little bit different. It depends somewhat on their judicial philosophy. Anytime we talk about these things, I have to talk about the one judge that I think was probably one of the best judges of all time, Tom Reavley. Reavley is just Judge Reavley to me. He always had a view of the rule of law. People mean different things by that. It’s something we say as a catchphrase. What it means is the law is carefully developed and you have to apply the rules in a way that it is carefully developed.

It’s not what you think it is. It’s not what you wish. It’s what precedent requires you to do and what the higher court’s views are. You have to understand your role in the system. I’m a big adherent of that and I get upset with judges who step outside that. Todd, to your point, here’s what I learned. Certainly, the facts of any case dictate how the opinion is going to come out and what the ruling is going to be. The real truth of the matter is the ruling has to fit within the fabric of the law.

You can’t consider the case in abstract. You have to consider how it fits with other cases, and whether your ruling here impacts another area of the law you didn’t intend for it to impact. Advocates that do not explain how a ruling would fit into the law and do no harm to existing law are making a big mistake. To the extent that I’ve been lucky enough to have appellate courts adopt part of our briefing, it has been because we try to do that. We’ll say, “Your ruling here would fit clearly within the Texas Supreme Court Holdings and A, B, C and D.” That’s very important to do.

The other thing that I didn’t know is extraneous matters aren’t important to courts. They don’t care in a personal injury case if the plaintiff is five payments behind in child support. They’re not supposed to care and they don’t. It’s not to say we can’t add spice to the argument about bad things that happened, but in making a decision those things aren’t important to a judge who’s doing good work. The other thing I learned is storytelling is as important to the trial court and the Court of Appeals if done honestly and forthrightly.

The last thing I learned from Kleber Miller is that the best trial lawyers by far are the trial lawyers that reduce everything to its lowest common denominator. They have a theme of their case and everything is simple. The same thing is true in appellate courts. In fact, the theme of cases has to be based on one matter. That’s important and that’s what I learned. Some people would argue, “I didn’t learn it very well.” Nonetheless, that’s what I came away with.

We appreciate you sharing those nuggets. I wouldn’t let you get away and I’m sure Jody wouldn’t either, but I definitely wanted to hear that perspective.

I want to back up a little bit because your story dovetails with something which is the development of appellate practices, especially in Texas. That’s not something traditionally that existed. It may have existed a little bit before you but not a whole lot before you. Can you trace how that became a specialization and a practice in Texas?

Unfortunately, I was part of it, but that shows my age. Remember, we went into certification in the late ‘70s and early ‘80s. The first time the State Bar convinced the Texas Board of Legal Specialization to authorize specialists. We did it candidly to mimic the medical profession in the specialties they had. We came up with the testing procedures, experience requirements, and the like. That board was served on. It was a fascinating board, and we started with personal injury trial law and civil trial law. There were some real estate issues that came in during that time. Now it’s gone, but there weren’t any appellate issues.

In fact, after I’d been on the court for a year, the Board of Legal Specialization authorized a specialty in Civil Appellate Law. The reason it was Civil Appellate Law was we couldn’t get criminal appellate lawyers to join us because, at that time, they believed that if you weren’t board certified, they would not get appointed appeals and thought that could be a big problem for them.

That turned out not to be the case. Nonetheless, that was a legitimate fear, so it went its own on Civil Appellate. In fact, in the first board exam, I had already been board certified in one of the trial certifications, so I had passed the procedural part. I drafted that for the first appellate certification courses. I want to thank Mike Hatchell, Rusty McMains, and Skip Watson. I could be wrong but Skip drafted the substantive section of the Appellate Law exam. I took it. Every other judge in my court said, “Why are you taking it? If you fail it, you’re going to look like an idiot.”

By the way, a Texas Supreme Court judge who took the exam did not pass it the first time but did the second. Long story short, that’s how it got started there. If you look at the appellate firms, practices, boutiques and all of that in the mid-1970s, look back before we look forward. First off, there weren’t very many appellate lawyers that purely did that. There was Jim Kronzer in Houston. Jim had come up with a wonderful firm, the Abraham Watkins firm, in which he had been named partner. John Hill, the subsequent Attorney General, had been a member of that firm and one of the red-hot trial lawyers of his time. He and Kronzer together held everything they wanted because Kronzer was that good. He truly was.

A hot Kronzer had separated himself from the firm and was by himself. He was hired by people on both the plaintiff’s and defendant’s sides to help their appellate lawyers with things. He was extremely gifted. He’s a great guy and a wonderful man to know. He worked with major Houston firms that had people who did appellate work but they weren’t developed into sections.

There were people that were associated with different lawyers like Marie Yeates with Harry Reasoner and Paul Stallings. I could do others. Tom Phillips with people in that firm. Fulbright, you had people like Bill Boyce and Reagan Simpson, who were dealing with people that were actively trying lawsuits. In Dallas, it was Royal Brent. If something happened on the insurance defense matter, Royal was going to get that appeal.

He had people work with him. Strasburg was doing those types of things. There was Mike Hatchell. Mike was actually in Tyler at the time. Mike had clerked for the Supreme Court. We had Wayne Scott in San Antonio, who had interestingly clerked on both the Court of Criminal Appeals and the Texas Supreme Court. I think that’s right. They would be hired by people to do things periodically. Louis Muldrow was hired as an appellate counsel, but he was teaching at Baylor at that time. He had been at Naman Howell and was a world-class trial lawyer.

There weren’t large groups of appellate lawyers. Most lawyers did their own appeals sometimes to good effect, other times not. I look back and I started thinking about examples of that. Coke Stevenson had been Governor of Texas. He’s the one that beat the Duval County vote count with Lyndon Johnson. Coke Stevenson was a masterful lawyer. While he resided in Junction, he tried cases all over the state. He was an active practitioner.

I looked one time and I found over 40 appeals that he had around the State of Texas, the Supreme Court of Criminal Appeals, where he did criminal work as well, and Courts of Appeals all around the state. He was known as a trial lawyer, but he did his own appellate work. In another case that you saw me work on, I ran into a Mr. Jackson who obviously had been a red-hot trial lawyer in doing oil and gas stuff. He wrote a number of law review articles and he cited cases that were important to a recent appeal. Todd, I looked him up and he did the appeals as well. That’s the Jackson Walker.

It was an interesting time when if you took the case in, you tried it, and you probably appealed it yourself. Things started changing a little bit. Rusty McMains had been with Fulbright. He did a lot of appellate work there and helped out in cutting charges with people. Rusty was larger than life. He broke off on his own and started doing appellate work primarily for plaintiffs. In the end, though, not so much. He did a lot of commercial appeals as well. He started to industrialize the process by talking to people about how to do it and setting interesting fee structures, and we can get into that. They were fascinating.

He and Mike Hatchell started working together on a number of things and were very close friends. They were kind enough to include me before I went on the bench in a number of appeals. They had a huge cadre of lawyers working for them. Bill Dorsaneo was involved in that as well. Bill Boyce and Roger were intricately involved in that. Those were major appeals from bigger cases. The bigger verdicts got, the more important appellate lawyers became.

All of a sudden, where we had been the nerds of the profession, we were the ones that were at the wall, and that changed things. In the mid-‘80s, you saw Rusty McMains moving to Corpus and starting his own firm, doing all the South Texas plaintiffs’ work but also looking at other kinds of commercial defenses. He and I worked together right when I got off the court in 1990 in a significant appeal. We had specialists that were out there marketing themselves and were only doing that. Kronzer continued to do extremely well. He started working almost totally in commercial cases, not doing much injury work at all.

Royal Brent got Mike Young and a whole bunch of other people, and they were billing that section. I was lucky enough to go to Haynes and Boone. It’s a great firm. They had one of the best lawyers of all time, I think, Nina Cortell  and we were able to put together an appellate section there that was sizable. The way we looked at it is if something bad happens, we can be on the ground within 5 or 6 hours, try to figure out what happened, and come up with a strategy for undoing it.

What we did is do what the corporate sections had done. We changed the dynamic a little bit to put a lot of people on it to discover what had happened, where the pitfalls were, and how we could make it better. If you remember back in those times, we had the TDTPA, the insurance code that combined together, created multiples of damages, and with punitive damages on top of that. Those types of things call for somebody that could get something undone very quickly if somebody got hit. On both sides, those were fascinating things to work on.

The larger firms decided that were still involved in dispute resolution and decided it was important to have sections to do those things, and they started proliferating all over. Mike Hatchell eventually moved to Austin. He was with Locke Lord for a time, now with Haynes and Boone with groups of people. Skip Watson has been with Amarillo in the Lubbock firm and is now with the Greenberg. We saw a number of significant changes.

We then saw in the ‘90s going into the 2000s the start of the Appellate boutiques. Doug Alexander is a classic example of that with a group of people that has changed over time as all of the bar groups have. Roger Townsend was part of the formation of that group. He left Fulbright, where he’d been in charge of that section. He basically said, “We do only appellate work. Trial lawyers hire us.” They’ve been very successful in doing that. There are others as well that have done that.

Randy Roach started a group in Houston and based themselves as a boutique in handling trial strategies and things like that. Very quickly, the traditional bigger firms decided to do the same thing. All of a sudden, their trial sections were developed with multiple lawyers, very much mimicking the firms that did the United States Supreme Court practice around DC. Williams & Connolly and Kirkland & Ellis had a very healthy United States Supreme Court team, as did Akin Gump for the longest time, just the United States Supreme Court advocates.

Some of us decided that was a good model, but it was a good model in Texas. It ended up working, and some were inside larger firms and some were out. The great thing about that is lawsuits got more focused. If you think about it, one thing about trial lawyers is they’ve got a whole bunch of things to work on and they’re focused on winning the case.

What appellate lawyers are focused on is the burden of persuasion. We’re going to help you win, but we’re also going to keep it when we do. If we lose it, we have a way that we can eventually reverse it. That became a major field. With bigger judgments and bigger verdicts came more necessity for appellate lawyers. The interesting thing and what has now happened is we see appellate lawyers involved in all stages of the practice.

They’re basically saying, “You deal with the burden of persuasion and the burden of proof. We’ll deal with the structure of how you submit this case.” That made a difference. The other thing that started the appellate specialization was the jury charge. In the ‘70 and ‘80s, starting with Island Recreational and cases that had hinted at broad form previously, the Supreme Court at one point had an advanced appellate course in Austin, the state bar. We had a Supreme Court panel, and then the chief justice pondered that there were probably less than a dozen lawyers in Texas who understood how to preserve error in a jury charge and how to submit a jury charge.

Appellate Practice: Appellate lawyers get involved in all stages of the practice. They deal with the burden of persuasion and the burden of proof.  

Todd, you were laughing but the horrible thing about that was everybody got together. Of course, McMains knew he was 1 of the 12. Hatchell was pretty sure he was one of them. I hoped I was considered as one but wasn’t sure. There were a number of other people who fell into that category. We would sit around after the course and have drinks. We would think, “Who’s in? Who wasn’t a member?” That was a larger group.

The fascinating thing about that is our special issue submission has gotten terribly complicated over the years. We tried to change it. At the Supreme Court Advisory Committee, we have gone a number of times to simplify the process for preserving errors. Trial judges don’t want that because they feel they can get ambushed. The issue with that to me is it’s not their trial. Nothing is unfair to a trial judge. A trial judge is there, in the rule of law sense, to do a specific job. In any event, we’ve not been able to get that done. It’s still a difficult issue that you can mess up if you’re not careful.

We’re going to talk about that in more detail in a little bit.

Maybe that’s another issue. In any event, that very much helped the appellate practice because people got very serious about it. We’ve seen successive generations of people coming in and, increasingly, members of appellate and pure appellate lawyers have never tried a case. Some might have been in a courtroom when a case was tried but have never tried a case.

Increasingly, also our appellate judiciary for sure doesn’t come from the ranks of trial judges. I’m going to use two examples of the opposite of that. One of Nathan Hecht’s great gifts is he was a trial judge for a number of years. He tried a number of very significant cases from the time he was on the trial bench before he went on the Court of Appeals, and then ended up on the Texas Supreme Court. Jane Bland is the same thing.

That gives you a pragmatist view of what happens in the trial court so that the decisions are based on real-life experiences. Increasingly, we are seeing people go on the court that don’t have that experience, certainly on the Supreme Court of Appeals, maybe even more so. In the trial court that’s the first level, but you’d hope that people have tried cases.

For the last three judgeships I was consulting, the person that was going to appoint them or his office, none of them had even tried a case. There are fewer trials to try now, but we’ve got some interesting issues going on. The group of people doing appellate work has changed from old has-been broken down trial lawyers like me to more people doing different kinds of things.

Remember, Hatchell and McMains didn’t track it. They were extremely good but they set through. I can’t wonder how many cases Mike Hatchell set through. It would be in the hundreds. Mike knew the ins and outs of what went on in a trial court as well. He still does as anybody, and Rusty McMains too. What’s been interesting is we progressed. That’s how it has progressed. The question is where it goes next. I like to think about those things.

We will sustain ourselves as long as two things are true: 1) Cases keep getting tried by other people. That’s one. We got to have an active trial docket. 2) If the dispositive motion practice continues to be what it is currently, remember, it’s been in the last two decades that Texas has adopted anything that looks like the federal system’s Summary Judgment 12 and all those issues. Now we’ve got other rules than 166 that deal with those things, but that begs for an appellate lawyer.

I’d rather have an appellate lawyer doing dispositive motions than I would a trial lawyer. Trial lawyers, if they’re truly good, are designed to go elsewhere. As long as those two things continue, we’ll have an active group. I wonder how related to the actual trial of cases that group will be in the future. I’m going to be sad. We still don’t have a number of people who actively try cases in it. We need more Coke Stevensons. That’ll make a difference.

That is a great overview of the evolution of Texas Appellate practice. We’ve had some of the folks that were around in the beginning. We’ve talked to some of those folks before and it’s great to hear your perspective on that, David. We could sit here all day and listen to you tell stories. Let me ask you a quick follow-up though. You mentioned Rusty McMains and his fee structures. Can we drill down on that a little bit?

I’ll give you an example. We were involved in one case and we both got called. Kronzer did too. Rusty called me and he said, “I know he’s going to talk to you. Don’t do anything until we talk.” It was rather significant at that time. It was a very well-known verdict that hadn’t gone to judgment yet. Rusty proposed something like this, and it was fascinating. Only Rusty could get away with this. I could never get away with something like this. He said, “I’m going to charge you on a monthly basis from now to the end of the case. If we win it, I want you to pay me an additional amount.” It was something like $50,000 or $60,000 a month. At that time, we were dealing with things that were $200 million verdicts and things like that.

Rusty would say, “The reason I need this is I would bill you for my expenses. The way I live, you don’t want to pay for my expenses.” I couldn’t get away with that. My needs were more simple, but Rusty did it. I had a jolly laugh. No one was offended. Rusty had a number of wonderful cases like that in which he had a monthly income that ran his firm very well, and there was genius to his ideas. One of the things is if you are unshackled from a fee, all of us that do work on an hourly basis know the pain of thinking, “I’ve got to do this work but I don’t think I can charge the client for it,” but you do it anyway. Sometimes it works itself or part of that at least works itself into a fee. Sometimes it doesn’t.

If you’re working on a basis of either a guaranteed amount or flat rate or under Rusty’s deal with a contingent fee at the end, plus a monthly fee, you’re not constrained by that. You’ll go ahead and do the work that you feel needs to be done. I think it made great sense. I got into a number of other things. One of them is it’s not an appellate firm but partly back out of Chicago. Fred Bartlett has similar fee deals where they get paid X amount per month, and they’re much higher than Rusty’s fees were and then even more per month in trial work. What happens is if they win, they get a predetermined amount. If they lose, they give back part of what they’ve already been paid.

We’ve done that a time or two. It has been successful. Jody and I worked on a case in which we took an artificially low rate because the other side believed that there would eventually be a settlement, and then we got a bonus in the end if we won. Those kinds of rates do make a difference. We tried to reverse contingent fees on the defense side if we were able to reduce a plaintiff’s recovery to certain amounts. The percentage basis on those doesn’t work well. It’s better to do it categorically and say, “If a judgment comes in A, B, C, and below this amount or this amount, then you’ll pay us that.”

We’ve done a pure contingent fee in other matters. Thank God, most time, it has worked out, but a time or two, it has not. We’ve all been there. Sometimes you do it involuntarily as well that it forgot to pay you. Those types of things help build firms. Todd, this is not directly an answer to your question but it reminds me of one thing. For a very long time, we didn’t have very many people coming out of the judiciary to go back into practice.

The bar at the Texas Supreme Court includes two former chief justices. John Hill marketed himself as a former Chief Justice when he came off. In one of my interesting times, I don’t think the Supreme Court knew how active General Hill was going to be, and so behind the Supreme Court justices, they hang the Chief Justice’s portrait.

I argued against John or Chief Hill or General Hill to me. He’d always insist on everyone calling him John. I argued against him in the Texas Supreme Court. One of the judges said, “You must have been able to tell what I was thinking because the question I was going to ask you was X.” I got up and said, “Of course he can tell what you’re thinking. He was looking over your left shoulder.” The judge looked at me. They all turned around and saw the portrait and they went, “We shouldn’t have that there.” It’s been interesting, but we’ve seen a lot of judges come back into practice.

John Casey is here, the former Chief Justice at the Fort Worth Court of Appeals. Boyce is with the Alexander Dubose firm. Tom Wright’s firm has Eva Guzman and Wanda Fowler. Cathy Stone practices in San Antonio. She does quite well. Harriet O’Neill has her own firm that is doing appellate work and the like. We have probably more appellate justices practicing appellate law than we’ve had in the past.

Part of that has to do with judicial compensation. Our compensation system was much better in terms of the judicial retirement available under the old Plan A. That’s not profitable and they made it for judges to go on the bench, and know that they didn’t have to build up a nest egg for retirement. In recent years, it has not been as good. We are trying desperately to get that back where it should be so we can retain some of the justices that have left. Chief Justice Jefferson has been very forthright with the legislature that the reason he left was financial. He was a wonderful Chief Justice.

Our current Chief Justice is as good as it gets but having the Wallace Jeffersons in the system would make a huge amount of difference in the whole bit. Thank God, we’ve been able to keep some of the people that have been on the bench for a long time like Chief Justice Hecht in office. That has been an interesting thing.

We’re at a great point to wrap up episode 1. We’re going to come back with episode 2 to talk a little bit more substance about the charge and oral arguments. Thank you, David.

I appreciate you being here.

You bet.

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About David Keltner

Formerly a Justice on the Texas Court of Appeals, David Keltner has been lead counsel in over 300 appellate decisions. His legal writings have been cited, with approval, by Texas courts.

Mr. Keltner is recognized for his appellate accomplishments. He was honored by Chambers USA as a Star Individual in 2021 and 2022, and has received Band 1 ranking every year since 2007. Texas Lawyer recognized him as the Go-To Appellate Lawyer in Texas, and he has been chosen as one of the Top 10 Lawyers in Texas, by Thompson Reuters, for the last sixteen years, ranking No. 1 in 2009-2011 and 2021-2022. The Texas Bar Foundation honored him with the inaugural Gregory S. Coleman Outstanding Appellate Lawyer Award. In addition, he was named Best Lawyers® Appellate Lawyer of the Year for Dallas/Fort Worth in 2016 and 2018.

In 2018, Mr. Keltner received Tarrant County Bar Association’s prestigious Blackstone Award, presented to a lawyer who has demonstrated excellence and courage in the practice of law. He is also the recipient of the Chief Justice Jack Pope Professionalism Award from the Texas Center for Legal Ethics and the Jim D. Bowmer Professionalism Award from the College of the State Bar of Texas. In addition, he is recognized on the national stage as a Fellow of the American Academy of Appellate Lawyers, one of only 320 in the country.

Mr. Keltner served as Chair of the Board of Directors of the State Bar of Texas. He was also Chair of the Litigation Section and Chair of the College of the State Bar of Texas. Additionally, he served as Chair of the Fellows of the Texas Bar Foundation.

The Texas Supreme Court appointed Mr. Keltner to a number of its committees. He served on the Texas Supreme Court Advisory Committee from 1993-2000 and was appointed Chair of the Texas Supreme Court Discovery Task Force. He was also a member of the Texas Supreme Court Advisory Committee for Professionalism that drafted the Texas Lawyer’s Creed.