Read on Twitter
I really, really, really, really should know better than to post something like this. I really should.
Good evening, #threadnought - NEW FILING! https://twitter.com/questauthority/status/1281367968157401091
Good evening, #threadnought - NEW FILING! https://twitter.com/questauthority/status/1281367968157401091
We've got the Rial/Toye Reply* Brief in support of fees.
I'll start livetweeting it in this thread in 10 minutes or so.
* p.s. for Kiwi Farms, Nick, and Ty: The brief submitted in reply to a response brief is called a "reply." It's only a sur-reply if it's a reply to a reply.
I'll start livetweeting it in this thread in 10 minutes or so.
* p.s. for Kiwi Farms, Nick, and Ty: The brief submitted in reply to a response brief is called a "reply." It's only a sur-reply if it's a reply to a reply.
Also, in all freaking seriousness I really, really had no idea that a brief was incoming when I posted the "I'm bored" tweet.
Just re-discovered a friend I've been out of touch with for way too long. I'll get back to this shortly. In the meantime, the filing is here: https://drive.google.com/file/d/1-3QYrD4THtDumOezzkORWinFEq_kkyQ0/view?usp=drivesdk
OK, I'm going to try and start this, but bear with me if gaps are longer than normal tonight.
This should go quickly, even though it's 33 pages. And it should (*knocks on wood*) be the last filing before either oral argument or decision on the papers.
This should go quickly, even though it's 33 pages. And it should (*knocks on wood*) be the last filing before either oral argument or decision on the papers.
Practice note for Ty:
Spelling the parties' names right on the cover sheet is generally considered to be a good idea.
Spelling the parties' names right on the cover sheet is generally considered to be a good idea.
Usually I wouldn't bother with the table of contents, but this is worth comparing with the 'product' Ty produced -
The headings are clear and informative, and the reader can immediately see where the document will go.
The headings are clear and informative, and the reader can immediately see where the document will go.
This summary of reply is well done.
9 words in, and I know the standard of review - which is a critical thing you want to know if you're an appellate judge or clerk, because it literally shapes how you read everything.
You don't find it anywhere in Ty's filings.
9 words in, and I know the standard of review - which is a critical thing you want to know if you're an appellate judge or clerk, because it literally shapes how you read everything.
You don't find it anywhere in Ty's filings.
The rest of the opening is also extremely well done. One of the biggest concerns I would have, if I was an appellate court, is whether the fees ruling was wrong enough to justify the inconvenience of remand.
This is going to tell them that they won't have to remand.
This is going to tell them that they won't have to remand.
I don't know if I'm going to buy that argument, but it's definitely something that would get my interest up.
This is another critical bit. Again, I'm interested, but I'm going to be looking for how well they sell it.
The rest of the summary keeps my interest up. But the final bit makes me grimace a bit. If we don't like the result below, but don't want to remand, but don't want to award the full $283k plus --
This is a good heading - both the "Brief" (if lives up to the billing) and the longer summary.
The "simple review of the six-volume clerk's record and four-volume supplemental clerk's record" is a wonderful turn of phrase.
Oh, nice- another shout-out for Nick. Beautiful.
But it's used well, here - purely to make the point that Ron and Monica needed to spend more, and that more costs than usual should be expected.
But it's used well, here - purely to make the point that Ron and Monica needed to spend more, and that more costs than usual should be expected.
(Sorry again for the delays - I think I'm done multitasking, though.)
So the highlighted sentence here is doing double-duty. It's important for the fees part of the case, but it's also a good reminder for the court on the merits.
One of the things I'll be looking for, but haven't yet seen, is some kind of explanation of how a case like this is handled on appeal when the trial court provided no reasons for the ruling.
This is the kind of sentence where you could pull the number of days out, and save the rest of the sentence for future use.
The last sentence points me toward the idea that there aren't a lot of cases that are squarely on point for what the appellees are asking the court to do - because the "not unreasonable" at the end of the quote suggests that the challenge there wasn't from the defendant below.
Overall, the review of the facts was - particularly given the combined nature of the opening brief on the fees and the discombobulated Ty filing - very helpful. Clear, to the point, and I'm more confident of my understanding of the issues after reading it.
This is a very good - very good - opening paragraph. It identifies, clearly, forthrightly, and without evasion the weakest point in their argument (or, rather, the biggest hurdle they have to clear), and then turns to explain why they think they've cleared it.
THAT is how you build credibility with the court. You don't beat around the bush, you don't try to hide the ball.
The next paragraph is also excellent - particularly in comparison with Ty. It's using clear language to make clear points. If I'm reading this after reading Ty's garbage, I'm so happy to be back to professional work product.
This is a good use of persuasive authority (meaning cases from out of circuit but on topic). It's also, if this is an issue of first impression for Fort Worth, authority that might even be persuasive.
Appellate courts are concerned about judicial economy. And sending something back. Remands are not economical, especially if you have to worry about the case bouncing back again after remand.
This is saying "hey, CoA, here's how to deal with this without remand."
This is saying "hey, CoA, here's how to deal with this without remand."
It's an area where the court may well be skeptical, but it's an argument that's calculated to not just show the court how they can rule on appellee's behalf, but why they should want to - it shows what's in it for the judicial system in the long term.
I'm not a fan of "must" here. But that's a style quibble. And there may be some "clear, direct, and positive" issues - but Ty is out of time, words, and replies of right.
This is another kind of double-edged sword. I can see the appellate court being uncomfortable with the arbitrary cut in fees, but also uncomfortable with penalizing Vic for having a stupid lawyer.
Under circumstances like that, the appeals court isn't in a great position. They can send it back, but odds are good there will be a post-hoc-justified haircut to a similar amount in that case, or they can award the full amount. But they probably can't to anything else.
I'm not going to go into detail on this section. I've worked on a fees case that was on appeal, and the factors are similar in most places.
There's no doubt Lemoine paid close attention to the factors, and little doubt that Chupp ignored them.
There's no doubt Lemoine paid close attention to the factors, and little doubt that Chupp ignored them.
The question is whether there's enough in the record, given the lack of clear findings, to require reversal.
So - block billing.
Attorneys don't want to spend 0.2 hours doing the billing for 0.1 hours of work. Lots of detail in billing records is inefficient.
Courts reviewing fees like lots and lots of details.
Block billing is efficient, but doesn't provide detail.
Attorneys don't want to spend 0.2 hours doing the billing for 0.1 hours of work. Lots of detail in billing records is inefficient.
Courts reviewing fees like lots and lots of details.
Block billing is efficient, but doesn't provide detail.
How persuasive this is will largely depend on the court's attitude toward block billing. (Because, yeah, the entries were block billed.)
I did a 50-state survey of the law on block billing 5 years ago. At that time, there were very very few states that categorically banned it.
I did a 50-state survey of the law on block billing 5 years ago. At that time, there were very very few states that categorically banned it.
But there were a fair number that disfavored it. I honestly don't remember where Texas was, but given that all 3 sets of lawyers block-billed, I suspect they're right and Ty is wrong.
(That's in addition to all the other reasons to suspect that they're right and Ty is wrong.)
