Brad LaMorgese | Insider Tips to Family Law Appeals

On this episode of the Texas Family Law Insiders podcast I sit down with Brad LaMorgese of Orsinger, Nelson, Downing and Anderson, LLP. Brad is known for his experience and excellence in complex litigation involving interpretations of law and cases regarding jurisdictional disputes.

Brad is one of the few appellate family lawyers in Texas. During his nearly two decades in practice, he has achieved success in dozens of cases in Texas courts of appeals and the Texas Supreme Court, as well as the U.S. 5th Circuit Court of Appeals. A high achiever, one thing he is most proud of is the Award of Merit from the National Center of Missing and Exploited Children. 

I worked with Brad on In re C.J.C. and I learned a lot from him about appellate law so I invited him on the show today to share his knowledge with us. We hope you enjoy this episode as we discuss:

  • Appeal vs Mandamus in family law 
  • The hurdles to relief in an appeal or mandamus
  • How to properly preserve error for appeal
  • The key things he sees missing in appeals
  • And more

Mentioned in this episode:


Brad Lamorgese: If you want fees, appellate fees and you forgot to get them in the final judgment or if you want a further temporary order, just file it, even if they don’t appeal.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today I’m very excited to welcome Brad Lamorgese as our guests on the Texas Family Law Insiders podcast. Brad is a partner at Orsinger Nelson Downing and Anderson in Dallas. He’s been practicing family law since 1996, and is board certified in family law by the Texas Board of Legal Specialization. Brad is known for his experience and excellence in complex litigation involving interpretations of law and cases regarding jurisdictional disputes.

With a long track record in complicated sophisticated cases. He handles all types of family litigation matters including divorce, complex property division, high net worth cases, business valuation issues, division of states, jurisdiction challenges, interstate and international custody disputes, and marital agreement litigation. He also drafts marital agreements, including premarital, post marital and partition agreements. Brad is also one of the few family appellate lawyers in Texas. During his nearly two decades in practice, he’s achieved success in dozens of cases in Texas appeals courts and the Texas Supreme Court, as well as the US Fifth Circuit Court of Appeals.

He’s handled appeals involving all areas of family law, including interstate and international custody, property division, award of property, habeas corpus, grandparent versus parent rights, bill of review, post divorce disputes, alimony disputes, parentage issues and father’s rights. And his appellate work is how I became connected with Brad I. He worked with me on the CJC case. And it was definitely the best decision I made to pick up the phone one day, and I guess I reached out to you on Facebook, and then picked up the phone and talk to you and one thing led to another and I’m so glad that I connected with you, learned so much about appellate law. And I think together, we made a great team on CJC. So thanks for joining us today.

Brad: Well, thank you, Holly. It’s my pleasure to be here. And I’m I concur with what you said I’ve very much enjoyed working with you. I’ve taught you as an appellate lawyer as well. So thank you for having me here.

Holly: So why don’t you start by just telling us a little bit about your background.

Brad: So I was licensed to practice in Texas in 1996. Way back last century. I was board certified in family law in 2001. Hard to believe about 20 years this year. I currently work at Orsinger Nelson Downing and Anderson. I’ve been here since 2006. It’s a full service boutique Family Law Firm. Before that, I worked at a big civil firm doing Family Law on some civil appeals at Cooper Scully, an excellent firm from 02 to 06. And then, really from 96 to 02, I worked with a family lawyer, Robert Holmes, who was also another boutique Family Law Firm. Additionally, I was on the Irving City Council for two three year term from 2012 to 2018. And then I finally just stopped running but it was far north Irving and I served on a variety of committees I was deputy mayor Pro Tem Mayor Pro Tem and 16 and 17.

I’m admitted to the US Supreme Court, many of the federal courts of appeals and Federal District Courts everyone in Texas. I’m a fellow in the American Academy of matrimonial lawyers. I’ve been Super Lawyers best of this and that from time to time. One of the things I’m most proud of though, was I received an award of merit from the National Center for Missing and Exploited Children in 2005, based on a Fifth Circuit federal appeal, I did out of New Orleans in a parental kidnapping case. I’m also in the Texas Academy of Family Law specialists and are very active in the Knights of Columbus as well. I’ve handled many appeals. Published many articles. It’s all in the fine print on my CV, but that’s that’s a little bit or a lot a bit about me.

Holly: So I’m intrigued about the federal component of your appellate practice, because I think of family law is a state issue and if it ever was going to the Supreme Court and be the United States Supreme Court, so how did you end up in a federal Fifth Circuit case with a family law issue?

Brad: They’re very unusual. The federal courts are not always excited to see us Family Lawyers. But I’ve had two federal appeals at a family law cases now. Both of them involve international kidnapping allegations under the Hague Convention on International child abduction. So, under the Hague, if a child is wrongfully removed from his or her habitual residence, or wrongfully retained in a country, and assuming you can, you can go prove that. You have the choice to either file that case in state or federal court. There is some thinking that maybe it’s better to file in federal court because it’ll become it’s not supposed to be a custody case. It’s literally where was their habitual residence and where they wrongfully removed.

And of course, there’s defenses and other factors. But it’s the thinking the logical thinking is if you file in federal court, a judge is more likely to just very strictly adhere to that law. And so if someone loses, then it would go to the federal Fifth Circuit and in our case, Texas leads to the court of appeals in New Orleans. So I’ve had two of those, the first one was called Sealed versus Sealed. We ended up winning that one and getting a child returned to Australia. You know, it was obviously very gratifying. We had oral argument in the in the Fifth Circuit. And then the last one we had was very interesting. It was a case out of Argentina. It made some new law because the US Supreme Court had recently ruled in a case called Monasky was one of Justice Ginsburg’s last opinions about this Hague Convention in the wife had argued in that case, well, we need to have a written agreement to which country we’re going to live in.

And the Supreme Court rejected that idea. It said it’s based more on a totality and you don’t necessarily need a written agreement. And so our case followed up on that. Our case involved two expats, who had moved to Argentina were actually divorced in Argentina. And the Court of Appeals really struggled with that they declined to return the child. But it was very interesting opinion of anyone interested about the relationship of expats going to other countries. And then coming back to the United States. This case, it was Texas. That one was an interesting case.

Holly: Very interesting. So how would you describe your current practice?

Brad: Well, you did a great job of it earlier. But pretty much what I do now is full service Family Law. So I’m selective about appeals. I really want good appeals, or something. But I think we have a reasonable shot. I think that’s important. I do a lot of family law trial work across the board. custody cases, property, obviously, I love property cases.

Holly: I think that’s really weird, by the way!

Brad: I love property. I love working with forensic experts on property cases, valuing businesses, tracing separate property. I love the nuances of venue and jurisdiction with regard to any kind of a case. Those tend to be mostly child related cases, obviously, I have what I call legal issues practice. So like the case we had there was a big standing issue on can this person even file this case? If so, do they? How does the constitution interact with that? So I do a fair amount of consulting with other lawyers, or co counseling on cases. And then I get hired to quite a few of those. Anywhere where there’s a legal issue involving summary judgment and briefing. I love those.

As you mentioned, drafting lots of marital agreements, or litigating those agreements. And then, to me, one item that’s definitely on the rise is what we just discussed, these international custody cases to me are becoming way more common. They’re very interesting. They’re difficult cases. Do you fit this standard? Do you fit a defense to this international treaty? Is the other country even a signatory to this treaty? If it’s not there, still other remedies. So I handle a fair amount of those kind of cases. And then, as you mentioned, quite a few appeals. We’ll probably talk about this in a second, but mandamuses, writs of habeas corpus. Those sorts of things are very interesting in family law cases as well.

Holly: So we are here today to primarily talk about appellate issues, and before I started doing more appellate work, I thought you appeals are super rare in family law because especially with modification issues, somebody can turn around and modify quicker than they can appeal their ruling. But there are definitely certain types of cases where an appeal is appropriate, like or, or mandamus. So let’s first talk about appeals versus mandamus. And kind of when you would use one versus when you would use the other.

Brad: Well, generally, you can only appeal on a case. An appeal happens at the very end. So if you’re spotting errors along the way, and doing what you need to do with regard to those errors, you appeal when the judge issues a final judgment. However, with that said, there’s other kinds of appeals, one of them’s called a mandamus. And it’s significantly more work because as you know, you have to create your own record. And it’s normally the clerk and the reporter would do these things for you. So you assemble all this, you productive, but it’s what I really call an emergency appeal during the middle of a case. And what’s extraordinary about family law cases is you cannot appeal a temporary order.

And many times as you know, you have a sort of a mini trial, right at the beginning or in the middle of the case that involves a temporary order that says what is going to happen in the family law case. And by law, those cannot be appealed. This is an absolute prohibition. So the only thing you can do and the law is very clear about this for way longer than I’ve been practicing that you would mandamus a temporary order if the judge abuses their discretion. So with regard to temporary orders, even a modification so if you think about this, there are some bars on a judge modifying something by a temporary order, unless there are certain emergencies are are in place. So family law cases are very ripe for mandamuses, is especially in the context of modifications, in my opinion.

And then as I talked about earlier, there’s another thing called a writ of habeas corpus. So if a client where the other side is held in contempt, and this gets very complicated, procedurally to go to the jail and go get all those documents, but there is a way to have an immediate addressing of whether your client should be in jail or not. And that that’s a very ripe area, because putting someone in jail is very technical. And many times those technical requirements are not met in a family case. So there’s definitely avenues literally in the middle of a case to go to the Court of Appeals. And as you know, in CJC this happened in some context, and I’ve certainly had it happen and others. All is not lost, because there is a way sometimes to stay the trial court’s orders, while the mandamus or emergency is going on.

Holly: Yeah, in CJC, we were able to get a stay from the Supreme Court of the underlying temporary order which gave rights and possession to a non parent, and we were making constitutional arguments in that particular case. When you’re dealing with two parents or maybe a case without the constitutional issues that we had in CJC. Do you see appellate courts granting stays very often?

Brad: Definitely not. Much more often, even if a mandamus is going to be granted a stay will not be granted. The courts of appeals, typically with stays are looking at something like you said where it’s further out there? Or is there a discovery deadline that you’re going to produce the secret to Coca Cola, they’re going to stay things like that, if there’s something that’s readily apparent that’s going to happen that would jeopardize rights. So if it’s fleeting, it’s rare. And many times you’ll choose not to ask for a stay just upfront, because if you think you’re not going to get it, it may hurt your chances for review.

So you may want to give them a little bit more time because when you file a mandamus with a stay, especially at the supreme court level, but really all levels, like literally they rang a bell, they have to drop what they’re doing and come look at your stuff. So it better be good. You know, and so they give it a much quicker look, but it’s not as good of a look, I would say so that’s always this strategic decision. Are you gonna seek a stay?

Holly: So the CJC case actually had two mandamuses. The first one we did was In re Clay, which was the first mandamus that I ever did. And that was the first time that we worked together. And then obviously we had CJC that went to the Supreme Court. And I know I got a little bit spoiled by courts taking our mandamuses is in both of those cases. So can you talk a little bit about just how hard it is to get a court to give you an opinion in a mandamus. And what your odds are of success?

Brad: Yeah, it’s it’s extremely difficult the way I normally describe it, you’re running up Mount Everest without oxygen. Like it’s, you’re probably not going to get there. Now with that said, I’ve had some ability of success and mandamuses and its, that’s really issue spotting. Clay was excellent mandamus, because you’re talking about standing, which is an issue that the Supreme Court has been interested in a and b, it’s it’s very important constitutional rights of parents. I’ve had a lot of success in getting uccjea mandamuses granted, particularly the supreme court level, In re Dean. In re Forlenza, were two cases involving interpretation of when does the case leave the state of Texas if somebody moves. And the court was very interested in that and spoke on those uccjea as the interstate custody statute really first came into effect back in those days.

So they were willing to speak on it. But with that said, your chance of success, in my opinion, in a family law mandamus, your average is less than 5%. Some of those, I would say, are a higher percentage, if it’s a pure legal issue, or if you got an interesting issue. However, with that said, I’m not going to count or promise you but I think I’ve had more mandamuses granted at the supreme court level than at the Court of Appeals. Like the Court of Appeals is very busy, they have 1000s of cases to get through. You have panels that handle mandamuses each month. And in my experience, they typically tend not to be interested in family law case. So even if it’s a good issue.

Holly: So I have had one recently, where and it’s actually currently up at the Texas Supreme Court at this point, but in Dallas Court of Appeals, without requesting response, they gave us a majority and a dissent opinion. Is that something that happens very often?

Brad: That is super unusual. Dallas court of appeals composition has changed. So we’re, you know, we’ll have to wait and see how they handle things. But normally, for them to issue a real opinion, you’re going to at least have to have a response requested. The court will not grant relief until a response is requested. So but I don’t recall seeing many opinions without a response granted, and then you know, it’s you do all this work, even if a response is granted, sometimes they send you a one or two line are denied. So, you know, that’s always disappointing. But it’s, it’s part of you know what your expectation is, but it is unusual, they will issue an opinion. I think that bodes a little bit better, whenever you get a dissent, or you get any kind of opinion from the Court of Appeals it bodes more well, for your review of the Supreme Court.

Holly: So one of the things that I know you and I have talked about a lot during CJC was kind of how your odds go up of success once you get across each hurdle. So, you know, if we’re at 5%, when you file, how much of a bump are you getting, if the court requests response?

Brad: Well, for an appeal, let’s just say appeals for a second. Your odds of reverse on filed cases is one and 10. Basically, they did a study a few years ago. When you get a response requested. So the Supreme Court, it’s a multiple layer process. Unlike the Court of Appeals, you just file your big, long brief and you’re done. You have a set of mini briefs in the supreme court as to request or response for it to go anywhere. And they describe it as a conveyor belt system. So if not, nobody pulls it off, you fall off and you used to get automatically denied. So the first step is for one judge to pull it off.

And then your odds are probably up to 20%. If you get through that round of mini briefing, and they’re still interested, they’ll request what’s called briefs on the merits. And that takes three judges to pull it off that conveyor. You’ll have three justices who are interested in full briefs at least. And your chances are up to about 33% according to this study. And if you get through full briefs, and they’re still interested, you have to have four justices out of the nine who want to grant your petition, whether that’s a mandamus or whether that’s in an appeal. And if you got a grant a petition, I think your chances are up to 70 something percent of reversal. So you’re feeling good.

You’re not home free, and you’re really probably more than four justices. If you think about it, because at that point, it’s probably not just going to be for the great your petition because you’ll still lose if there’s five going the other way. So it’s a serious question at that point. And you’re, you know, you’re feeling very good. And you’re probably getting oral argument like, we did in CJC. You know, but to my other mandamuses at the Texas Supreme Court level, no argument, you just got a pre curiam opinion in our favor. And I know, opinion that wasn’t authorized by anybody. But as you jump these hurdles in the supreme court process, your chances get better and better. Mandamuses I will give you a lower percent on each one of those steps.

Holly: So when comparing appeals and mandamus, I know there are a lot of issues, especially the CJC type issues that are constitutional, where abuse of discretion is the standard, both on a mandamus and on an appeal. So are those treated differently? Or what if it’s the same type of issue are your chances better on an appeal, even though the standard is the same?

Brad: If they’re better only slightly, I think abuse of discretion on the scheme of standard review, it’s the worst. You know, they give high deference to the trial court, we don’t want to get interfere, we get muddy in a family law case, let’s let the judge take care of that. To me, that’s a bit of an oversight, because a lot of the judges nowadays are basing their cases on docket management rather than than necessarily giving it the look we used to get 20, 25 years ago. So to me, I would hope for an increasing look at those cases. And in many cases, we have a hybrid standard anyway, when you’re on appeal of you are looking at sufficiency of the evidence, which is a more friendly standard, with a lens, also the abuse of discretion that it’s a family law case.

The issues that I love, I would argue CJC is standing, I would argue, obviously a summary judgment, if the judge says, well, I think they’re separate property or not. That’s de novo. That’s the other end of the spectrum, no deference to the trial judge, they look at it all over again. They look at the facts, they look at the law, and they make their own decision. So if you’re looking for a good appeal, or a good mandamus, you’re looking at more of a pure legal issue typically.

Holly: So one of the things that I think a lot of family lawyers who don’t do appellate law struggle with is how to properly preserve error during a trial or during a case in general. What are some tips you have for attorneys in that regard?

Brad: That is a major challenge. I would completely agree with you. Many times error is not preserved. So there’s a couple of weird principles of appellate law that the Court of Appeals is trying to hit the easy button, they’re trying to get rid of your case. So don’t let them hit the easy button if you can avoid it. And what I my tip is, if there are four or five big issues that are important to your client, focus on those and preserve error on those. There’s one one principle of appellate lies that says you’re not entitled to a perfect trial. So literally, the judge, the trial judge can make errors. And they’ve got to be proven to be harmless.

And so if you’re talking about the context of a property division, you’re really going to want to illuminate why the judge miss characterizing something as harmful, or, hey, if they awarded it to your client anyway, what is the rest of the division look like and get the percentage. Very clear. So the Court of Appeals can evaluate it. Preserving error, you know, we all learn this in law school, and then we, we forget it from time to time, but it is objecting or presenting your evidence at the right point in a timely manner, right then in securing a ruling from the judge. And that’s the challenge, because some judges will be pushing you not to do that. Some judges will be pushing you move along, you know.

So that’s why I say pick your battles, you know what the important battles are, and make sure you’re preserving error. And one of the key things I see missing is, if a judge excludes the key piece of evidence, rarely or evidentiary error is going to overturn a judgment because it literally, the judgment has to turn on that piece. With that said, there’s appellate cases that do overturn those sort of judgments. So if you get evidence excluded, make sure it’s included as an excluded exhibit in the record. Or two, if a judge strikes your expert and you think that’s wrong, or if a judge says this is not relevant, I’m not hearing from the witness on this topic.

Make an offer of proof, get that in the record as to what you would have presented. If you don’t put it in the record as to what you would have presented, it will never be reversed. Even if you say, well, hey, I wanted them to testify on the other side’s pornography obsession in a child custody case, or, hey, I was trying to put on my tracing. And the judge excluded it and wouldn’t let my expert talk about this. Make sure you make an offer proof taken by the court reporter with the excluded exhibits that go with the record. And literally, the cases say the judge can even leave the room, just make sure you put on your evidence, if that’s a key issue.

Holly: So let’s say a judge excludes an expert prior to trial. And at that time, you didn’t make an offer of proof, the judge just decided this expert is excluded. Do you come back at the time of trial and make an offer approved? Or did you miss your chance by not doing it right then at the hearing on the motion to exclude?

Brad: I don’t think you probably missed your chance. I don’t think it’s probably too late to do a deposition of your expert and then just put that in before trial, just say hey, here’s what we would have offered judge. We’re asking for reconsideration on what would have been the expert challenge and Dolberger Robinson challenge whatever you want to call it, or if they were designated late or something like that, then I don’t think you have to offer all of that at the exclusion hearing. I think it’s wise to do that if you know you’ve got to change, you’re experts going to be excluded. Load up.

Now, that’s kind of funny, because I had two cases where many, many years ago, the judges were going to exclude what I had to offer. And so they’re like, we’ll put on your offer proof. So I put on the witness. And they’re like, you know, I like this, I’m going to I’m actually going to allow it into evidence. So sometimes that can be rather convincing to them that they they think, okay, maybe I shouldn’t exclude this expert. I think they’ve demonstrated the nexus of what their testimony is going to be. And I’m going to, to consider it. And that’s underrated, too. You know, sometimes the judge will go well, I do think this is relevant. And I am going to let it in.

Holly: So one of the mistakes, I don’t know if it’s a mistake, one of the issues I see attorneys dealing with is judges who get annoyed when you continue objecting, or they’ve already made their the judge has already made it clear that you’re not going to get this in, and attorneys kind of give up on their objecting because they don’t want to annoy the judge or have that held against their client. What do you do in that situation?

Brad: Again, I, you have to weigh is this a critical issue or not? I totally agree with you. I see that all the time. If it’s an important issue to me, I’ll just be a pest about it. You know, it’s, you know, the judge won’t even let you make an offer or approve, you can come back with. There’s all kinds of weird procedures to come back with bystanders bills, this sort of stuff. That’s not easy, necessarily. But I think that you need to be an advocate, I think that you need to stand up for your client, and on the important issues to advocate. And I feel more comfortable doing that, as I’ve got a few more gray hairs over my over my years. But I think that judges will respect you for for on the important issues. And that, you know, they may not like it, but I think that it’s important, especially if it’s on a critical issue to preserve the client’s case.

Holly: So you mentioned, you know, Judge not letting you make an offer of proof. If you request to make one and the judge will not let you because they say for example, it’s not relevant, then is that an abuse of discretion that subject to having everything overturned? If you weren’t, a judge did not allow you to make that offer, offer of proof?

Brad: Yeah, so that goes back to the evidentiary standard, again, a very difficult part of an appeal. But there was a key piece or key witness, whether it was wrongfully admitted or wrongfully excluded, that can overturn a case. So, you know, you can pursue the bystander bills route, and you have to go get somebody out the hallway and put on your evidence to them what it would be, it’s sort of ridiculous, and then you recreate it. With modern technology. I think there are easier ways to do that. If you’re in the middle of a trial, maybe you’ll go do sworn statements, and then get a bystander to sign off, but this is what you would have introduced. That is very, very rare, though.

Most trial judges are going to let you do what you need to do and, you know, then they let the chips fall where they may but there is a way to do that. It’s it’s not fun or easy, but there’s a way to put stuff in. Yeah, it’s it’s that same to me. If they’re not even letting you enter a record, it’s gonna probably even help your appeal on that standard of like, okay, they wouldn’t even let me do this.

Holly: So one of the new issues that we’re all dealing with is the new disclosure requirements and the rules. And people are probably coming up pretty soon on their first trials under the new discovery rules. And one of the issues we’ve been looking at is how do you let’s say somebody does not make their pretrial disclosures as required. How to properly object to that in the trial court to preserve that issue for appeal?

Brad: Oh, there’s a host of issues with the new rules and how they apply to family cases. When are your experts really due. Some people take the position I do that you if I’ve got an expert, 30 days in from the answer, I’ve got to disclose them. Some say no, no, you can wait till the 90 days before trial, 90 days before the end of the discovery period. In cases in Collin County, I’m getting set within four months. It’s literally impossible for me to designate experts in time. So how are judges going to deal with that, but and then the 30 days you’re talking about is like your your exhibits and witnesses are literally due in a family law case. 30 days before trial, which drastically increases the costs and family law cases, because we were normally trying to do more of that at the end, as settlement really hypes up.

So it gets real for people and trial’s a couple of weeks away, it’s not real, when it’s 60 days away. I think that we look back to the old case law on how you objected to failure to designate things. So there’s two theories of thought on that. Number one, if it’s Holly and they, you know, you’re not, you’re not getting the witness list or the exhibits a day 29, before trial, you file an objection, all this should be excluded. You put them on notice, it gives them an opportunity to cure, you still object anyway. The other theory of thought is you’re entitled for people to go by the rules, you have that expectation, you walk into trial and say, you know, they didn’t have a witness list, they didn’t produce your exhibits, they just got them to me, I didn’t prepare for that.

So you should exclude everything. That’s harsh. The family cases in the past tend to especially if it’s a custody case, let people present their case anyway. I don’t know what I’m gonna do, when that comes up, I probably will just file an objection. Because the courts are probably going to be lenient on them. And so I’d rather have that material sooner rather than later. You know, that if then if they don’t produce you put them on notice. So that’s one line of cases, the other line says you can just rely on the rules and object. So.

Holly: You filed an objection. And they still didn’t produce anything. Let’s say it’s a pro se party or, or whatever, somebody whose client doesn’t cooperate to give them information, then do you still need to object again, at the trial?

Brad: Yeah, I sure would, if they’re going to try to introduce anything. And that will be part of my opening housekeeping is, you know, Judge, you ordered this. It’s part of the rules, you ordered it, they still didn’t do it. So they’re limited. And I want to just put that on the record right now. They shouldn’t be able to introduce anything, but they’re going to try to do.

Holly: So then the judge says denied, I’m gonna let him do it. Do you then for purposes of preserving error need to object to every witness that gets up there? And every exhibit they’re trying to introduce?

Brad: I would, because the standard is a timely objection. And you can even waive objections you previously made. Pretty annoying, and then the judge may just say, well, you know, running objections are generally not good to preserve error, by the way, so I don’t like running objections. They’re running nowhere when it comes to your appeal. So, you know, I would just stay in and, you know, you might abbreviate your objection, at least plainly make that and then, if there’s a particularly like, let’s say it wasn’t ever produced in discovery, it comes as in an exhibit, they were hiding behind the ball or hiding behind the log here, and they launch something just crazy on you.

Then I would also make that a longer objection on why that piece of evidence prejudicial, we could have gone gone and gotten counter evidence. To this, we’re obviously not prepared for that it’s trial by ambush, particularly the more important pieces that you’re spotting if it’s a pay stub, maybe make your objection and then you know, just go with it. But if it’s something critical on like, oh, here all the bottles of alcohol around your client and then it’s like, some cheap look at it that you could, you know, you could have gotten gotten the alcohol test to show your client’s not drinking. You could have gone and shown what that was really about. So I think that in that I would elaborate more.

Holly: So one more issue we wanted to touch on today are appellate deadlines and things that attorney trial attorneys need to be aware of, when an appeal as an issue, so can you speak to that a little bit?

Brad: I could a lot. But I won’t go that long. I promise. I’ve written a whole paper on this, particularly with a family law perspective. If you know the case is going into appeal, you need to kind of start putting on both hats. Your trial and appellate hat, or, you know, get somebody to help you with the appellate stuff if you don’t want to do that. Literally in the old days, and it’s been cleaned up a little bit, but it’s still dangerous. Like literally, there were some family law fact findings with regard to property with regard to varying from the standard possession order with regard to varying from child support guidelines that you had to request at the hearing. How do you know how do you know that the judge is going to do any of that? So in theory, you could just put that in a pre trial pleading that, hey, if you do any of these things I want specific findings on those get waived all the time.

And they’re very, very handy tools to make the judge go do. But generally speaking, you’re all your deadlines are going to run from when the trial court signs the judgment. There’s cases out there that held a memorandum or rendition or ruling or a final judgment. So if you have anything that even looks like a final judgment, you might as well start requesting things. You’re generally speaking other than your family law specific findings, findings of fact, and conclusions of law are due within 20 days of the judgment. And in theory, they can extend the deadline to file your notice of appeal from 30 days to 90 days, only if findings are required. They’re not required when you have a summary judgment, they’re not required with a jury verdict. They’re not required in certain types of cases.

So be careful in just filing a findings and thinking that’s extending your notice of appeal. Notice of appeal isn’t due at 30 days unless you file a motion to change the judgment. Commonly a motion for new trial. But it’s really in any motion under 329 v modify reform correct. Asking for a change will extend that notice of appeal from 30 to 90. So when in doubt, file your notice of appeal in 30 days. And typically, if you really want to appeal file a motion for new trial within 30 days. If you file your motion for new trial outside of 30 days, or if you amend it, the judge can completely ignore it. It’s really a jurisdictional thing.

The judge could look at it to take mercy on you and grant something an amendment filed outside that time but if you don’t file that timely, anything timely within the 30 days, Plenary Power expires, the judgment is final. If you file something that extends it like the motion for new trial, then a motion for new trial is overruled at 75 days by operation of law. So if the judge does nothing is just overruled. And then you have 30 more days today 105 for the judge to sign an order, vacating the old order. If the judges even rules during Plenary Power, but doesn’t sign an order, getting rid of the final order, you’re stuck with it.

Now here’s a common secret that people forget. At 30 days is when your notice of appeal is due, but you have 15 more days to request an extension. And I highly recommend if you get beyond that 30 or beyond that 90, and someone wants to appeal don’t just tell them they’re dead in the water. They’ve got a 15 day extension and in all likelihood, it’s going to be granted. So I don’t recommend going over the deadline but really think of day 45 or day 105. If you extended the appellate deadlines is your real deadline to file a notice of appeal, don’t risk it. But also don’t tell the client they’re done.

Holly: I’ve been really surprised with how lenient some of the appellate courts seem when it comes to deadlines. We have an appeal pending right now where the other side didn’t file a brief by the deadline. And the appellate court said we haven’t received a brief or an a request for extension. So we’re going to give you 14 days to file a request for an extension. And I thought what what point are deadlines if people don’t have to meet them, but I guess if you missed when you’re really glad they’re lenient.

Brad: They’re very lenient on briefing deadlines. They’re very lenient on the court reporter and clerk for getting those records in. So those typically are 30 days after the notice of appeal is due the clerk’s reporter have to set up the record. Now you have to request it. And you really want to do that by the time you file a notice of appeal. If you do not file the notice of appeal and time with an extension, or if jurisdictionally it’s not a final judgment, they’re not lenient about those things. They really look hard at that, because they don’t have jurisdiction to hear it. But everything within is very lenient as you point out. You know, home, especially with pro se is almost maddeningly lenient, they just don’t want to dismiss it.

Holly: So one thing that we’ve kind of learned, as we’ve built our appellate practice is really checking those deadlines before we file anything, because especially if we’re looking at possibly temporary orders pending appeal, the deadline to those has been requested before you file your notice of appeal. And I think a lot of attorneys miss that. And they assume once I file a notice of appeal, then it’s appropriate to request temporary orders pending appeal.

Brad: Very big problem, very awkward rules, it used to be even worse. You literally have to have a temporary order rendered within that 60 day statutory deadline. If you know the other side’s going to appeal, there’s some argument, there’s a lot of nuances to that statute on. If they appeal and you don’t within the time, you may lose your hearing all together. So if you know they’re going to go to appeal, just file a request for temporary workers on appeal, and then you’ve done your request in time. And then you’ve preserved your rights. But you’re absolutely right. If If you want fees, appellate fees, and you forgot to get them in the final judgment, or if you want a further temporary order, just file it even if they don’t appeal.

Holly: So you mentioned requesting fees for the appeal. So that is something that you do at a hearing on temporary orders pending appeal and get the trial judge to award?

Brad: So you could do either. Trial Lawyers always drastically underestimate what an appeal costs. So frequently, the judgment people get for a successful or not successful appeal, you know, in a court of appeals, or the Supreme Court is too little A. Or they don’t do it at all, B. And C, I don’t know what appeal the other side’s gonna file. Is it 10 issues and it’s the whole transcript is that one small issue that’s going to be easy to brief and, you know, look through the record and get all your facts sight.

So in that case, you can go to back to your trial court and get interim fees on appeal, you have a hearing. And then you can even get an open ended order where they just re up your retainers, whatever it is it is if one side has a lot of money, or they’re trying to outspend the other side and make them suffer more, you literally can get those fees on appeal without even being successful, which is different from the judgment you might get at the time of trial. So that’s a very handy tool, I would say it’s rarely used.

And so I can’t tell you that that’s branded often. But if I have a client who’s doesn’t didn’t have all the separate property was a parent and they’ve got the kids and the other side’s appealing it. And we don’t have any money to try it because there wasn’t much money to divide. I would highly anticipated trial court giving you interim fees. But as you said, it’s tricky, you know, to to make sure. Soon as a final judgment comes down and they’re sniffing around appeal or fact findings, just request your hearing and go get it heard immediately and get an order.

Holly: Okay, so I’m just about out of time. But one of the questions I like to ask all my guests, is if you could give advice to young Family Lawyers, what would it be?

Brad: Well, I’m a throwback. So I’m going to admit that first but especially for young appellate lawyers, don’t stop reading and writing. Like read fiction, read nonfiction. Legal writing typically is terrible. It’s not good for your brain. It’s not great reading. And you will become a much better appellate brief writer. If you read novels, if you read how to tell a story. If you’re clear and concise and like try to try to help the Court of Appeals. They don’t like legalese. They don’t like a 50 page brief that repeats itself. So try to keep sharp on your reading and writing. The more you read, the better writer you become. And so I highly recommend that. And then number two is, as young lawyers, it’s easier now than ever to differentiate yourself from your peers.

I’ll put on my rose colored glasses back in the day, we all worked a gazillion hours, you had to work hard, we were here more than the partners. If you’re working hard, you’re going to A you’re going to be years beyond your peers and experience. You’re going to advance yourself, you’re going to be profitable, which firms always like in in, you’re going to become a better lawyer. And you don’t want to do it when you get older. Trust me like you’re, you’re not going to want to work those long, long hours. As you get married. As you have kids, as you get older, and have health problems or whatever, or you’re pursuing other interests, you’ve got no money to travel, do that. When you’re you’re young, get get your experience in and you will become very valuable to law firms.

Holly: And I would add to that, find yourself a mentor like Brad because he has really helped change the trajectory of my career. And I didn’t know him when In re Clay and CJC came along. But I’d been told he was one of the family law appellate lawyers that I should reach out to. And I picked up the phone, called him and form that relationship. And now to this day, I’ll still if I have an appellate issue or a unique legal issue, I’ll call Brad. And I’ll ask him what he thinks of it. And those types of relationships are really invaluable in growing your knowledge, growing your practice. And even you know, I’ve been practicing not quite as long as Brad, but for a while, and you don’t, there’s so many things out there, you don’t know. And so having somebody to bounce ideas off of and to help you realize where you should be going with something is really valuable.

Brad: Yeah, I think for sure, I mean, I’m by force, I think I’ve had many mentors, I would call lots of judges, lots of other lawyers who had had a case with and just ask them and most people are very generous. I also think like, even as you graduate from mentors, you have colleagues who are stronger in areas than you. And as you know, as you get older, you get more comfortable in saying I don’t know, it’s so you pick up the phone, and I think it’s I love doing it. I think it’s good for for all of us. It makes our practices stronger. And I definitely think as a young lawyer that’s harder to do and you think you know it all you don’t want to be afraid to ask, you know, you want to be afraid to ask a question or something. But I totally agree with you.

Holly: So where can our listeners go to learn more about you?

Brad: Probably the best place is the website. So it’s o n d a family law dot com. There’s a lot on there. I’m pretty active on my LinkedIn page. I try to post frequently just about fun stuff or family law stuff. I’m on, obviously, like all of us on Facebook and Twitter, Instagram. Twitter and Instagram, I don’t do much on there. But definitely Facebook. I have a lot of blog entries on the website. So I write still pretty frequently wrote an article for headnotes the Dallas bar. I write for Texas lawyer all that should be in in on my website links. But on occasion I’ll do web series on different topics. I did some on appellate I did some on high net worth. My next promise is probably at least a 10 part series on this international custody stuff because it’s so interesting. And I think a lot of people don’t know about it. So I’ll be doing that coming up.

Holly: Well I’ll definitely watch for it because that is one area I know little to nothing about. So I’ll be looking forward to that. So thank you so much for joining us today and for our listeners if you enjoy this podcast please take a second to leave us a review and subscribe so you can enjoy future episodes.

Brad: Thank you.

Voiceover: That Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at

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