Transcript

Chad Ruback: Just because something happened in the trial court doesn’t mean it’s on the record. And if it’s not on the record, you can’t discuss it on 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 we’re excited to welcome Chad Ruback to the Texas Family Law Insiders podcast. Chad loves being an appellate lawyer. He’s always limited his practice to appeals and trial court motions likely to be an issue on appeal. Chad served as a court of appeals briefing attorney and worked in the appellate section of a large law firm before opening his own Dallas appellate law firm in 2005. He has since been regularly named to best lawyers in Dallas by D Magazine, best lawyers in America, best law firms and Texas Super Lawyers. Chad previously served as the president of the Dallas association of young lawyers, and has served on the board of directors for the Dallas Bar Association. Thank you so much for joining us today.

Chad: Thanks for having me, Holly.

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

Chad: Certainly, I went to UT undergrad, SMU law school. I served as a briefing attorney at the second Court of Appeals that the court in Fort Worth. I spent three years in the appellate section, a midsize law firm for years and the appellate section of a large regional law firm. And then I opened my own appellate firm in 2005. So I’m celebrating my 16th anniversary this month.

Holly: Congratulations on that.

Chad: Thank you.

Holly: How would you describe your current practice?

Chad: Largely, I help trial court lawyers position the cases for appeal. And then ultimately I handle the appeals or help the trial court lawyers handle their own appeals in the court of appeals. As I tried to emphasize to trial court lawyers regularly, most appeals are won or lost in the trial court. And so whenever possible, I try to strongly encourage them to get me involved earlier on rather than later. I bet that close to 50% of my work now is helping out trial court lawyers in the trial court get a case ready for appeal, as opposed to actually handling the deal itself. And based on my experience doing this over the last few years, I’ve found that we’re a lot more successful on appeals if I get involved early on, as opposed to when it’s time to appeal.

It’s really frustrating when I get a call from a lawyer who lost a case in the trial court that was a good case, and really should be won, but can’t be won in the court of appeals because the case in the trial court wasn’t well positioned to present an appeal. And so I found that my time is well spent getting these cases will positioned the trial court for the court of appeals. Of course, I do handle the case on appeal when they get there. But I’ve been to the extent possible I can, banging people’s heads about how important it is to get me involved early on. An hour of my time spent in the trial court is often more effective than 10 hours or even 100 hours of my time spent the court of appeals.

Holly: Do you find that doing that preparing for appeal earlier in the litigation process leads to fewer appeals, or does it just make the appeals more successful?

Chad: It can lead to fewer appeals. More often than not, though it gears us for a better result on appeal. Often in a family law case. If one side or the other is predisposed to an appeal, they’re in it for the long haul. You’ve I’m sure you’ve seen opposing counsel, we’re gonna fight the case fight your client until the end of time. There’s nothing you can do, no matter how wonderful your win is the trial court, no matter how well you preserve or how great you make a record, no matter how great you do everything.

Even if all the laws are in your favor, all the facts are in your favor. You as a trial court lawyer to do everything possible, right. In a family case, sometimes the personalities just won’t ever let the case die. So even if everything is done perfectly, the lawyers do everything perfectly, the clients do everything perfectly. The facts are perfect, the laws are perfect. Sometimes you just get a jerk on the other side who’s never going to be willing to let it go. And so in a situation like that, all we can do is just win and keep on winning.

Holly: Yes, we definitely love doing that. So do you do a lot of appeals in different practice areas? Do you the whole spectrum? What areas do you cover?

Chad: I do not handle, I do not handle criminal cases. I handle all sorts of civil cases. Family cases are certainly an important part of that. But by no means the bulk of it. I would say family cases are less than half of what I do. I do a lot of business litigation appeals. I do employment dispute appeals, real estate, oil and gas, the gamut of civil cases. I stay away from criminal stuff because that’s a whole different set of, of law. And it’s all I can do to stay up on all the civil law in the cases coming out of the civil side.

But I found that it makes me a better appellate lawyer, seeing tactics and procedure and cases coming out in different types of cases. They’re not that many family cases up on appeal, there’s not that much family law case law coming out. And so if I’m working on a business law appeal, I see things that I can then use to help my family law clients and family law appeal. It’s only a handful of big family law case up on appeal at any given time statewide. So the work I do say on a real estate appeal, I’m going to be able to use to help my family law appeals that that come up with analogous legal issues at a later date.

Holly: Are there any key differences between handling a family law appeal and handling other types of civil appeals?

Chad: The clients tend to be a lot more involved in a family law case. And this litigation case, for example, in, say, a pure business dispute or real estate dispute where it’s just about dollars, I will have clients call me and say Chad, you know, let me know when we’ve won. Here’s the file, give me a call in a year or so when the case is over abd you have good news for me. In family law cases, the big distinction I’m seeing is clients tend to be more emotionally invested in the case and want more frequent updates. And also want more input as to micro strategic decisions made during the appeal, I’m happy to do it ultimately it costs the client a little bit more money because there’s more time involved.

If, hypothetically, I’m speaking to the client on a daily basis, that might require more hours than if I were speaking to a client on a monthly or quarterly or annual basis. But I’m actually happy to do it. I love explaining what I’m doing. I love input from clients. I love input from trial lawyers. But the biggest difference that I see between, say a business dispute and a family dispute is the clients want more active involvement in family dispute. I’m always happy to have all my clients whether it’s a family case, business case, business case, oil and gas, what have you, I’m happy to have clients as involved, or as uninvolved as they choose to be. With the caveat that if a client wants to have a high level of involvement, daily phone calls, for example, it is going to increase the expense.

But if that’s something that they’re happy with, I’m happy with it as well. I love having a team approach of getting to work with clients regularly and explain to them exactly what’s going on and what we can be doing in order to speed things up or to slow things down. Depending on the client’s preference, how we can spin the case facts to help them not only on appeal, but potentially help them out in in their family situation outside of the courts. I’m happy to do all that. That’s something I see requested much more in family law context than say, you know, oil and gas case or a real estate case.

Holly: So obviously, our podcast is geared towards family lawyers. And even we were talking right at the beginning, you mentioned how preparation for an appeal earlier in the litigation process can really help the appeal. And we’ve also you also mentioned about how there aren’t a ton of family law appeals. And really, you know, most cases aren’t good candidates for appeal because the clients don’t have the money or you can turn around and modify a year later. And that’s going to be quicker than an appeal. So what types of things should family lawyers in general be doing during litigation, during trial to prepare for an appeal, that aren’t going to cost a lot of money, knowing that most cases don’t ultimately get appealed?

Chad: First, think about the record. Just because something happened in the trial court doesn’t mean it’s on the record. And if it’s not on the record, you can’t discuss it on appeal. And that’s extremely frustrating for clients when you know, I’ll have a conversation with a client and they’ll say, well, you know, be sure to mention this or that. And I can’t find it anywhere in the record. If it’s not in the record, it didn’t happen for the purpose of appeal. I can’t mention an appellate brief, I can’t mention in oral argument. It doesn’t matter if there’s a silver bullet email out there. If it didn’t make it into the record, it didn’t happen.

And so it doesn’t cost a lot of money for a trial court lawyer to be thinking everything that might potentially be a value on appeal, get it in the record. It’s not a big time commitment. It’s not a big money commitment to do that. But it is definitely something that needs to be forefront of your mind is anytime there’s a document. Anytime something happens that you might potentially even, you know, one in 1000 chance, want to mention on appeal, go ahead and get on the record. And don’t wait to the end of the case get it in as the case is proceeding. That does two things. One is make sure you’re not going to forget to get something in the record and two is it shows the other side and the judge okay, this trial lawyer’s making a record for appeal.

They’re taking this case very seriously. They’re not gonna drop it at the end of the trial court litigation. They are at least giving serious thought to taking the case up on appeal and not just making a threat. A lot of people threaten, I’m going to take this case up on appeal. It’s one thing to say that, it’s another thing to actually show it by your actions. So I would say making a record is very, very important. By record, I mean filing documents with the district clerk’s office to get it in the in the trial court’s file. That’s part of the record. It means making sure you have a court reporter present at your hearings. Sometimes I’ll see judges say something like, oh, my court reporter is out today. Is it okay, if we go ahead with this hearing without a court reporter?

Generally, the answer should be no. Obviously, if it’s a true emergency, you need to balance things you can weigh the pros and cons. But if given a choice between having the hearing today without a court reporter, and having one tomorrow, when the court reporter’s back in the office, wait till tomorrow. A record is your friend on appeal. Sometimes the judges will say things at these hearings that you can use against them on appeal if you lose. Or conversely, sometimes opposing counsel will say something on the appeal. And you might use that to help your case. But if you didn’t get it on the record, it didn’t happen. It’s not helpful to you to have everyone in the room remember what happened. And remember the same what happened. If it’s not the record, it did not happen for appellate purposes. Something else is findings of fact are important.

Whenever the trial court judge is factfinder, which means is the person who’s deciding who’s telling the truth and who’s lying, you know, whether the light was red or the light was green, you know, with whether the husband was cheating or not cheating, that sort of thing. Always, always remember to request findings of fact, when the trial court served as facts finder, there’s often a very short window in which to request them, then if the trial court judge doesn’t prepare the findings of fact, after you’ve requested them by his or her deadline to do so, you would need to file a notice of past due findings of fact. And if you don’t file that notice of past due findings and fact, it’s as if you didn’t request them at all. Once you have you requested and timeline. And once the trial court has indicated that he or she is going to be preparing findings of fact, conclusions of law, often trial court judge will ask, ask one or both the parties to actually prepare a draft of their findings of fact.

It’s a decent bit of work for the judge to prepare a first draft, so often, the judge will defer to one or both the parties to prepare an initial draft, it’s worth spending the time to do that correctly. Because sometimes the findings of fact, conclusions of law can can make or break the appeal. When the trial court judge does get your submission findings in fact, often the trial court will get a submission from the other side, it’s important to object to specific portions of the other side’s proposed findings of fact. It’s also important after the trial court judge does sign findings of fact, to go through them and see are there any holes in there? Is there any area in which the trial court just didn’t make any findings of fact, where he or she should have. For example, if separate versus community property was an issue in your case, and you’re looking for findings of fact that the trial court judge signed and wow, there’s nothing at all about separate properties in this findings of fact, you’re required to file a request for additional findings of fact.

Expressly requesting findings on that issue. You know, makes up the gap, you know, the the separate property in this in this hypothetical. And if you don’t file a request for additional findings of fact, as that area where there are none where there’s this gap, it’s as if you didn’t request findings of fact at all with regard to that topic. There’s also a very short window in which to request additional findings of fact. So findings of fact, it’s a really technical practice. That’s an area in which if your client allows, it’s a really good idea to get some input from appellate lawyers. Even if it’s, you know, buying one hour of a lawyer’s time, that hour could save you 10 hours or 10s of hours in headache on appeal. Sometimes an hour, maybe even two hours of help from an appellate lawyer with regard findings of fact, could be the difference between winning and losing an appeal. I explain to folks again and again and again, that appeals are often won or lost in the trial court, not the court of appeals.

When I get a call from someone, and the case has been lost in the trial court. I visit with them about potential issues on appeal potential appellate arguments, and often I want to bang my head on my desk, because I’ll be thinking wow, if they consulted with an appellate lawyer or they worked with a family lawyer who has a decent bit of appellate experience. Maybe we wouldn’t be in the situation we’re in now. We wouldn’t be having this issue. Sometimes things can be broken in the trial court that can’t get fixed on appeal. And there’s nothing more frustrating than a situation like that, or I’ll look at it, I’ll say, Wow, if only we filed this one one page document, we would have a really strong appeal. But because that one one page document didn’t get filed, I don’t think we can win this thing on appeal.

So I guess I guess my theme that I keep coming back to is think about the appeal early and often in the trial court. This is not a situation of well we’ll just wait until we lose the trial, and then think about the appeal. Or alternatively, we’ll wait until we’ve won a trial and we’ll let the other side worry about appeal. Even if you’re 100% certain you’re going to win in the trial court, you want that win to be such that you can keep your win on appeal. Your win doesn’t do any good otherwise. There I know, I’m rambling. But some important points were made nonetheless.

Holly: Yeah, I want to go back and hit on a couple of those. So on the objecting to findings of fact and conclusions of law that the other side presents, what specific things do you object to? Because I always kind of assumed that, okay, that, you know, both sides are gonna present their findings of fact, conclusions of law. The trial court, in my experience, just signs off on the one of the winner. And here, we’ve got our findings of fact and conclusions of law. And then if it’s not supported by the record, I attack that on appeal. So what purpose does objecting serve? And how do you logistically do that?

Chad: You’re right, that often, you don’t have a choice but to attack an adverse finding on appeal, but to the extent you can win someone in the trial court before you ever get there, it’s all the better. It makes it even easier to win on appeal. So instead of just waiting for the trial court judge to sign the other side’s findings, and okay, well, that’s a ridiculous finding I should attack it on appeal. Sometimes you have some leverage to get the thing attacked in the trial court and cost opposing counsel some some huge credibility points. If you point out, you know, hey, Judge, you know, before you sign this, take a look at this proposed finding number five there, that’s not consistent with what you heard, is it?

In fact, my recollection is you didn’t hear anything remotely near that. That’s an issue which, you know, wasn’t even reached in trial, or if it was reached, the court overruled some objections. And as such that could not possibly have been the court’s finding. Often a judge is going to be open minded, if you can point out clearly and succinctly why there is something specific they could shouldn’t sign. So I don’t believe that it’s in your best interest, just let the judge sign it without a peep from you, and then argue against it on appeal. Try to argue against it before the judge ever signs it. I have found that if you can find even one point that the other side puts in their proposed findings of fact, that is just absolutely positively inconsistent with what happened.

You can get the judge to question not only that one point, but the rest of the proposed findings the other side has submitted. You might even, and I’ve seen this happen not common, but it does sometimes happen. You might even get the judge so unhappy with the other side, if we’re trying to try to pull a fast one with their proposed findings or asking the judge to sign that the judge might ultimately say, okay, I’m not going to look at your proposed findings anymore. I’m gonna let the other sides that propose finding, see if they can do a better job. See, see if they can do a better job at putting in writing what I’ve orally pronounced is my rulings. So I don’t think it hurts at all, the worst will happen is the judge will just sign with the other side, submits. And then you can do exactly as you suggested. Argue about it on appeal. But to the extent you can fix it in the trial court before for getting to the appellate court, all the better.

Holly: So when you have lost at the trial court, and you’re the one who’s appealing when they come back and want you to, the judge asks you to prepare findings of fact conclusions of law are presumably asks both sides to do it. I’ve heard a lot of differing opinions as to how the loser wants to draft the findings of fact and conclusions of law. Do you do it based on what you think the judge actually found? Or do you base it on what you think the evidence showed and the judge should have found? What’s your position on that?

Chad: Generally, it doesn’t matter. Generally, the judge is going to sign at least as a starting point, at least the judge is going to use this starting point to propose findings that the winning side proposed. I can’t remember ever seeing the judge starting with the losing side’s proposed findings of fact as a starting point. Often judges don’t even ask the losing side to prepare proposed findings of fact. Often the judge will just ask the winning side. Sometimes they will ask both sides to do it, but it’s almost as a courtesy. And then it’s clear they don’t even look at the proposed findings of fact submitted by the losing side.

So when the judge asked both sides to, I hate to say it, but I don’t genuinely recommend putting a huge amount of time and effort on the losing side as part of preparing the first draft of it. Because generally the judge is going to be focusing on starting off with the proposed findings submitted by the winning side. The only time I see it really helpful for the losing side’s findings of fact to be, you know, given a large amount of time and a large amount of thought is when the winning side goes way, way out of bounds in what they’re requesting in their proposed findings of fact. And in that situation, I’ve seen the judges say, I’m going to look at the other side’s instead, that’s just ridiculous.

But the vast, vast majority of cases, you know, 99.99% of the time, the judge isn’t going to even look at the losing side’s proposed findings of fact, first. Generally, the judge is going to look at the winning side’s proposed findings of fact first, and then saying something to the losing side, at best, along the lines of is there anything we’re missing here? Is there anything just terribly wrong here that needs my attention before I sign these? So your question is a good one. But ultimately, it’s almost always an academic concern there. Because just like when the judge asks both sides to prepare proposed judgment, or prepare proposed final decree, generally, if the judge is already announced who’s the winner, who’s the loser, the judge is going to use as starting point the winner;s proposal rather than the loser’s proposal. Does that make sense, Holly?

Holly: It does, yes. It’s frustrating to me that judges don’t prepare their own findings of fact, because that seems to be the entire purpose of findings of fact is to see what the judge actually believes, where the facts presented, but it is what it is. And so we have to deal with.

Chad: And I wish the judges had more resources. Frankly, it’s going to take a while to draft prepared, proposed findings of fact, just like it’s gonna take a while to draft a proposed decree in a complex case. The judges often don’t have enough staff attorneys working with them. Don’t have law clerks working with them. And frankly, there’s only so many hours in the day, in a busy family courtroom, a judge just doesn’t have, you know, two or three hours in the day to draft proposed findings of fact. In federal court, for example, judges are going to have you know, two or three full time attorneys working for them to help draft documents, we just don’t have that in our state district court, such as our family courts. That’s why I think it often works out it does. I agree with you, this is not ideal. But better than nothing happened at all. Better than just the wheels of justice stopping.

At least this will give a trial court judge a starting point. But if you are the side that didn’t prevail, if you’re the losing side, be sure you respond very quickly to the proposed findings submitted by the winning side, before the judge has a chance to sign them. At the very least you get the judge to question the other side. Well, maybe I shouldn’t sign off on this exactly as submitted, there is a really good point there made by the losing side as to this one finding. Maybe we should have a hearing to discuss this. Don’t just let the winning side submit something and shrug and say we’ll deal with it on appeal. If you can fix things in trial court, it will save you from having to fix them in the court of appeals.

And frankly, you’re often going to be more likely to be successful fixing things in the trial court, than fixing them in the court of appeals, because well, the court of appeals justices will remind us again and again in their opinions, that the trial court has a huge amount of discretion. If the trial court’s discretion is from here to here, as long as the trial court is within those bounds, the court of appeals won’t take any action can’t take any action. And so as long as the trial court judge is going to be within those bounds, you have no chance to prevail on that appeal. And so it’s very helpful to be thinking of, okay, how can I help position the trial court judge to be on my side within those bounds, as opposed to on the other side within those bounds? That’s true, not just findings of fact, but almost everything that occurs in the trial court level.

Holly: Right. So one of the other topics that you bought a little while ago that I wanted to go back to was the record and getting things be sure to get things into the record. So if you’re appealing a final judgment, to what extent do you need to be sure everything is getting into that trial transcript that may have previously been admitted in prior hearings or discussed in prior hearings?

Chad: If you had a record at the prior hearing, say you had a court reporter at the prior hearing, if evidence was offered and tendered to the court reporter at the prior hearing, you wouldn’t need to reoffer it and get it redone at the final hearing generally. And the way to be certain that that evidence that those arguments did make it in at the earlier hearings is it’s not cheap, but buying the transcript from the court reporter shortly after the hearings, that way you can look at them and see is that what I remembered. Sometimes you’ll have a situation where you have a hearing a preliminary type hearing, you buy the records from the court reporter and you remember for certain that there was a piece of evidence offered, and you don’t see it as part of the reporter’s record, then you can go through and look at what you did get from the court reporter and see if you see on the record in black and white, where you offered the evidence, were you tended the evidence, maybe the court order just forgot to attach it to the end.

You can say right here it shows Ms. Draper offered, you know, petitioner’s Exhibit A, but it’s not attached. Where is it? That’s the time to get those things fixed is shortly after the hearing. Not two years later, when you’re getting ready for final trial or even after your final trial and you’re getting ready for the appeal. Court reporter might be able to find something a week or two later. But if two years have gone by, and you’re trying to find petitioner’s Exhibit A from that preliminary hearing two years ago, might be pretty tough. So I suggest going through it as the case progresses, and getting transcripts getting getting records as things happen, checking to make sure things actually happen. Like was the same procedure could be utilized, or an analogous procedure could be utilized with regard to the clerk’s record, meaning what’s in the district clerk’s file. Is be sure you get filed stamped copies and review them after a filing.

And after your filing, after opposing counsel’s filing. It’s not enough to just know well, when I gave my paralegal this document to file, I instructed her to attach these three exhibits to the filing. Well, you want to get a file stamp copy back in which you can confirm those three exhibits are actually there. In theory, it’s possible your paralegal could have dropped the ball and filed the document without those three exhibits. In theory, it’s possible there could be some sort of snafu with the district clerk’s file portal. And somehow those three exhibits could have could have been stripped from the primary document. So it’s always easier to fix things soon thereafter, as opposed to waiting years down the line and trying to trying to recreate things where people’s memories are lazy. Does that generally answer your question, Holly?

Holly: So what I’m wondering is, you know, if, let’s say family law contexts, we have a temporary orders hearing early in the case where there’s some damaging testimony, there are some damaging exhibits. And those things are not later raised in the final trial. And they don’t offer the transcript, they don’t do anything to get it into evidence at the final trial. Judge rules in a way that you can assume is not supported by the final trial record. But if you threw in that earlier evidence of, you know, say a parent being unfit or, or whatnot, then that temporary orders hearing might support such a finding. So when you’re appealing that final trial judgment, can you, do you look just, does the court of appeals look just to the transcript from the final trial? And if you didn’t readmit that evidence, or you didn’t have that testimony, again, it’s gone. Or can the court of appeals, look back to prior temporary orders hearing, prior hearing on whatever other things may have happened during the course of the trial, and factor all of that evidence in to decide if the judge made a valid decision.

Chad: The court of appeals can look to things that happened earlier in the case, as long as on the record. The question is, is the court of appeals going to give the same weight to something that happened? Let’s say a temporary orders hearing two years prior, as opposed to something that happened more recently at the final trial, the court of appeals might very well look at something and saying, yes, that was in the record. But that was a couple of years ago, the trial court judge might have thought that things could have changed in the intervening time. They say, you know, the husband could have been a bad father two years ago, but maybe he’s gotten a lot better in the intervening time. So while court of appeals can look back to anything in the record. Ultimately, if it’s not something that happened recently, you know, shortly before the final order, the final judgment, the final decree.

I think it’s going to carry much, much less weight. And in some situations, the court of appeals might even hold well, this is something that did actually need to be brought up at the final trial, if this is going to be a linchpin of, of the party’s arguments. So is it better having it in the record from a long time ago prior to the final trial, as opposed to not at all. Absolutely positively. Is it going to be much better to actually get it in the record of the final trial? Yes, without a doubt. So if there’s something that you think really helps your side, or something that you really think hurts the other side, even if it’s in the record from a long time ago, absolutely, positively get it in the record in the final trial, if at all possible. If somehow that just didn’t happen, well, should you go back and try to rely on something from the record before? Yes, better that than not at all. But not nearly as good as if you’ve got it in shortly before the judge made his or her decision, say at the final trial.

Holly: So when whenever we do the podcast, we always ask our guests for kind of topics to discuss. Now one of the topics that you had brought up was three objectives that lawyers should consider in every single court filing and every single hearing. What are those three objectives?

Chad: First, try to win. If you win in the trial court, you dramatically maximize your chance of success on appeal. I mean, if you just look at the statistics, the party that won the trial court is likely going to be the party that’s going to win an appeal. Far from or far from assured thing, but you will absolutely positively maximize your success on appeal if you win at the trial court. And some of that is where I do the standard review deference to the trial court judges we discussed earlier, there is quite a bit of deference given the trial court judge. And so as long as the judge is within the bounds between here and here, and was the trial court judge is a lot of difference, well, you don’t have a shot on appeal. So number one, try to win in the trial court. Number two, at the same time, you’re trying to win in the trial court, try to win in such a way as you’re going to be able to keep your win on appeal. If you win in such a way that it’s just clearly a reversible error that the trial court is committed, you’ve won in such a way you can’t maintain your win on appeal.

If you win in the trial court, you can’t maintain that win on appeal, you can’t keep your win, it’s not really a good win is it it’s not a solid win. It’s not a win your client is ultimately going to be happy with down the road. The client’s gonna be happy here and we won, we won, we won. Your client is going to be furious if the client finds that two years later in the court of appeals issues and opinion that the win was in such a way that there was no way you could have ever kept it on appeal. The client would have rather had it you know, I had something in the trial court that the client could have lived with, that could be maintained on appeal, as opposed to just an amazing win, but something that could never be maintained.

So one, win. Two win in such a way that you can keep the win on appeal. So be watching how you’re winning, don’t win at all costs. Win in a way you can keep your win. Three, while you’re doing the first two things trying to win and try to win in such a way and keep the win on appeal, be thinking of the fact that no matter how great your case is, no matter how great your client is, no matter how good the law is, no matter no matter how good you are, there’s always going to be a chance you’ll lose. So be mindful of that possibility. And be mindful of making a record. So if you do lose, you can hopefully fix that loss on appeal. Some lawyers will, will not be of that mindset, because they’re just so sure their client is in the right. There so sure the law is in their favor, they’re so sure the facts are in their favor, they don’t give much thought in handling case in the trial court to what happens if we lose.

They never even consider the possibility of losing. In every single case, there is a possibility, not always a big possibility, often a small possibility of losing. So try your case, handle your case, as if there is a chance you’re going to lose. And you’ll need to argue on the court of appeals, why you should have won. So those are three things to do. At the same time. It’s not easy to do all three, you’re essentially having to try three cases simultaneously. You’re having to try it as if I’m wanting to win, here’s how I need to win. And here’s the here’s another thing I need to do with how do I make it look like I should have won if I do lose?

Holly: I think that second piece about winning in a way that you can keep the win on appeal is a really hard thing to sell to clients in a family law case, especially when the appeals are very rare in most cases, and so you can assume and sometimes we see the lawyer on the other side, and we can think okay, that’s there’s a good shot, this lawyer is going to appeal. But 95% of the cases that go to trial, at least that I see, nobody’s going to be appealing. So clients are going to want to go for the home run, the grand slam and get everything they possibly can. So how do you kind of balance those two things.

Chad: I like to have that discussion with clients exactly as you said. There is a decent chance the other side won’t be appealing. However, if they do choose to appeal do you really, really want to be in a situation where we have an appeal, we can’t win. Where we can’t maintain our win on appeal. And if that happens, the other side will get a do over and the judge isn’t going to be really happy with us that we asked him or her for something we couldn’t keep on appeal and ultimately we lost an appeal. So that’s something I like to discuss with clients is okay, here’s a way we can win that’s a truly a grand slam This is amazing for us. How about this if we win and it’s not a grand slam. How about if we win by hitting you know, four or five singles in a row without any homeruns it’s still a win. And this is a win we know for sure we can keep on appeal.

By getting that grand slam home run but maybe we’re not really sure we can keep on appeal. That might get the client really, really happy. The moment it happens, but chances are the client’s not going to be so happy when the case is reversed, goes back for a duel over remanded for a new trial. And the trial court judge might not be really happy with the client. Might not be really happy with the client’s lawyer for having asked for something that couldn’t be kept on appeal. Judges don’t like getting reversed. And if you the lawyer asked the judge to give you something that caused the judge to get reversed an appeal, judge might not be very happy with you or with your client. So those are discussions I’d like to have with the client is we absolutely positively want to win.

Do you really really want to win in such dramatic fashion with three grand slam homers in one game, that you’re just begging the other side, just taunting the other side to appeal and just taunting the court of appeals as well. I don’t know that that’s in the client’s best interest. On the other hand, if you can win the case with a bunch of solid singles, you know, no big you know, big fanfare, but a good solid win. Nonetheless, one that’s going to withstand an appeal, and probably is going to be strong enough, the other side might not even want to spend the time and money on appealing. Well, they’re not only one, but you’ve saved the time of an appeal, you’ve saved the money of fighting an appeal.

And you’ve saved the likelihood of having to do the case over again, based on the court of appeals are shaking their head and the fact that you won with four grand slam home runs in the first inning, just no way, we’re not gonna let you keep that. If you won it with, you know, five or six solid singles in the first inning, that’s something might let you keep. Ultimately, if you have that discussion with your client early on, your client might very well say I don’t want to win in such a way that you know, when we win it, the other side is going to say we’re not going to appeal it, we’re just going to let this win stand. It is what it is both parties need to go their separate ways. Nobody needs to spend a lot more money in the case. That’s the kind of win generally clients want when they think about it.

And genuinely, when they think about it in a vacuum, they want that, you know, three and four grand slam homer in the first inning. But once they realize the consequences of that, that often that’s going to mean they’re going to be spending a lot more time in litigation, they’re going to be spending years more in litigation, going up to the court of appeals and going back for a duel from the trial court. And also a lot more money correspondent to the amount of time involved. Sometimes the clients will say, Holly, I want you to get me that five or six singles in that first setting.

Let’s win it with those singles. Let’s not rub the other side’s nose in it. Let’s not rub the court of appeals nose and you know how dramatic our win was. Let’s just have a solid win. Sometimes clients will go for other times, I’ll say I don’t care about the appeal, I don’t care what it’s gonna cost me, I don’t care if we might lose the next go round. I don’t care, I don’t care, I don’t care, I want you to hurt them. And those are clients who are not always the easiest to deal with, in my opinion.

Holly: So true. But at the same time, even if an appeal is not necessarily on the table, if you get that, you know, for grand slams win that’s not supported by the law. And that’s really shifted to one side, it probably greatly increases the chance of a modification coming pretty fast down the road by the other side. So whether they’re going to be spending that money on an appeal, or they’re going to be spending that money finding the next modification, probably having the four singles, five singles win helps prevent, mitigate both of those costs.

Chad: Yes, I like looking long term, you know, what is going to be the win, that’s going to be the win long term, not just the win for today. I don’t think it’s helpful for a client, even if sometimes they might initially think it is to have a short term win. If it’s going to be a long term loss. I always tell folks, I want to win the war, even if it means that you’re not going to have those dramatic of victory, every single battle. I want to win the war. And the war is often you know, often if there gets involved, you know, the war might be the next 15, 16, 17 years. It’s not just what happens today.

It’s not just what happens in the final trial. It doesn’t matter if you win the battle so resoundingly that you, you know, you jumping up and down and say, whew, if it caused you to lose the next battle, and the one after that, if you’ve lost the war, and you don’t want to lose the war, you want to win your battles, each of them in such a way that you’re going to be winning the war. And think of this as a long term thing to 15, 16, 17 year old war. Hopefully it doesn’t turn out that way. But if you’re winning the battle, so resoundingly and doing your victory dance, after every single, every single win, you’re winning things that you know you really have had had no need to be fighting over.

You’re going to spend a lot more time, a lot more aggravation, a lot more money fighting than you actually need to. Those are things I like to visit with clients about and sometimes it’s tough for clients to wrap their arms around. Well, you know, I want to win the war. And if that might mean, winning a battle by a little bit, as opposed to really racking up the score in this battle, you know, winning this battle, and the biggest winner ever was, that might be something for the clients to take into account. I have found when given good counsel by their lawyers and given enough time to think about it, most clients will make the right decision. On the other hand, there’s some lawyers out there, who are going to do exactly what the client suggests without giving the clients counsel.

I don’t think those lawyers are giving their clients very good service. I feel the best way to provide good service to client is give them all the options, tell them pros and cons. Explain to them what the likely outcome will be not just of winning this thing, but how this could impact things down the road. How it could impact the entire chess match, if you will. Most clients will ultimately make the right decision, but grudgingly so sometimes we will do it. On the other hand, if they don’t get that counsel from the lawyer, they’re going to be unhappy with their lawyer later, they’re going to be wondering, why the heck didn’t you tell me this was going to happen?

Why didn’t tell me this was going to be a possibility. If I would have known this was going to cause the other side to do this, was going to likely involve this sort of outcome in the court of appeals, and it’s gonna make gonna make us redo this and spend all this money and get a worse result than we could have gotten the first time around. Clients are going to be pointing the finger to a lawyer saying, yeah, I was really happy when we won, we won so decisively. But if you would have told me what the impact of that was, ultimately was going to cause us to lose the whole war, we wouldn’t have done it that way at all.

So clients want to be given information I have found whenever there’s tough strategic decisions like that to be made, even if the client says, I want to win resoundingly, I want to win this battle, resoundingly. If the client is made aware of the potential impact of such a resounding win, as opposed to just a solid with a good everyday type win, often the clients will begrudgingly say, okay, yeah, I guess it is in my best interest to win with four and five singles, as opposed to win by four or five grand slam home runs.

Holly: And as a lawyer, it can be hard to not want to get that big win too, because a lot, a lot more fun hitting a grand slam, than it is hitting a single.

Chad: Absolutely, positively, that’s true for the lawyers and the clients as well. And lawyers, professionals need to put the client’s interests above their clients. And I find that most lawyers will do that most lawyers are good people and good lawyers. And we’ll do that if they think about it. The problem is a lot of lawyers get so caught up and you know, having fun, you know, winning, you know, the battle resoundingly that they don’t even think about it long term.

So I would say the average lawyer isn’t intentionally keeping the information from the client. It’s the lawyer him or herself doesn’t think about this, and then is surprised when whoops, in hindsight, maybe we should have won this thing, but one it a little less resoundingly, as opposed to won the thing like this. It’s kind of like if, if your goal is to speed but not getting speeding tickets, maybe you shouldn’t be driving a red Lamborghini. Because if you’re driving a red Lamborghini, you’re gonna get a speeding ticket for going 36 miles an hour, in a 35. As opposed if you know, you’re you’re driving a standard sedan, you might be able to regularly go 10 or 15 miles over the limit and never get caught.

Never, never, never get a speeding ticket. So sometimes you need to think about how things are going to be perceived. If your goal if your goal is really to speed regularly, you do not want a red sports car, you’re going to be able to speed regularly with without a bad result you know, you know, in a tan Toyota, as opposed to a red Ferrari. You drive the red Ferrari, you’re going to be going to speed or you’re going to be in jail. So we need to think about what the consequences are of winning really real resoundingly, as opposed to just having some solid wins. And again, I have found the most clients when getting the counsel from the lawyers and I think good lawyers should be giving them well, ultimately, begrudgingly make the right decision. And the decision is going to be in their best interest long term.

Holly: Well, we’re just about out of time. So one of the questions I like to ask all the guests on the podcast, is if you could give one piece of advice to young family lawyers, what would it be?

Chad: Learn the law, learn the family code, learn the case law, interpreting the family code, learn the rules of civil procedure. Yes, the Rules of Civil Procedure do apply to family courts, learn the rules of evidence, same thing. There’s a lot to learn. I’ve been practicing law for over 20 years, I’m still finding things that I don’t know. So be a student of the law. Of course, learn to be a better advocate, learn to try cases better. Learn to to negotiate better, all the things you’re already doing. But in my mind and seeing things from our perspective, seeing some trial court lawyers who are just missing some important legal points. Be a student of the law. Learn the law that will make you more valuable to your clients. It also make you more valuable to your colleagues.

Often, if you’re working in someone else’s office. If you can be the person, you as the junior lawyer can be the person that the more senior lawyers come to when they have legal questions. You want to be that person you want to be indispensable, when someone has a question as to what is the family code say about that? Or what have what have courts done in their interpretation of that section of family code, as a young lawyer is absolutely positively in your best interest to be the person that senior lawyers come to and ask those questions of. And the way to do that is just frankly, hard work. Studying up like you’re still in law school.

Holly: We all thought we were done with that, right? All right, so where can our listeners go if they want to learn more about you?

Chad: My website is www.appeal.pro. There’s no .com. The whole thing is appeal.pro. I do have some FAQs, frequently asked questions on my website. So in addition to learning a little more about me, you might actually be able to learn a little bit about some legal issues on my website as well.

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 www.Draperfirm.com