Appellate law not only involves issues in an appellate court following a win or lose in a trial court but also the potential appeal of certain issues before a final judgment as well as actions in a trial court with an eye toward a potential appeal. Kershaw Anderson, despite its relatively small size, has a lawyer (David Walsh) who is board certified in Civil Appellate Law by the Texas Board of Legal Specialization and who has been the primary attorney responsible for over 100 appeals.
Before final judgment, certain trial court rulings can be appealed immediately. When a trial court has committed a clear abuse of discretion for which there is no adequate remedy by an appeal after a final judgment, Texas law permits an appellate court to immediately review that ruling by way of a mandamus proceeding. Examples of mandamus proceedings in which Kershaw Anderson attorneys have been successfully involved include the inappropriate disclosure of privileged information, the compelled disclosure of irrelevant net worth information, the failure of a trial court to properly rule on a recusal motion, and the failure of a trial court to timely rule on a motion. Additionally, Texas law by statute permits certain trial court rulings to be appealed through an interlocutory appeal. Kershaw Anderson attorneys have successfully pursued interlocutory appeals of issues involving preliminary expert reports (for health care and design professionals), personal jurisdiction, and arbitration clauses.
Unfortunately, not all trials are won. The appellate lawyer evaluates the trial record for potential error and determines which issues to present to the appellate court. Additionally, merely having an appellate lawyer available to the trial team signals a seriousness – to opposing counsel and the trial court – that the party’s position is correct or that the party may ultimately appeal any adverse ruling. In the end, having an appellate on the trial team can help preserve error for an appeal or even result in a favorable resolution in the trial court.
The practice of appellate law starts when many do not realize that it is occurring. Pre-trial motions, such as motions for summary judgment, challenging the admissibility of expert testimony, or testing the propriety of the pleadings or discovery responses, are ways in which the trial and appellate lawyer can work collaboratively to steer the case in a positive direction. The appellate lawyer understands the issues that are likely to turn an unfavorable trial court ruling around.