Happy New Year! To ring in 2022, host Rocky Dhir welcomes Warren W. Harris and Kirsten Castañeda to look back at 2021 appellate law happenings and explore the lessons to be learned. Warren and Kirsten discuss topics from their recent appellate law articles for the Texas Bar Journal and offer guidance for attorneys on current issues.
Warren W. Harris is a partner in Bracewell in Houston, where he heads the firm’s Appellate Practice Group.
Kirsten Castañeda is an attorney with Alexander Dobose Jefferson LLC.
Special thanks to our sponsor, Clio.
Rocky Dhir: This podcast is brought to you by Clio.
Intro: Welcome to the State Bar of Texas podcast, your monthly source for conversations and curated content to improve your law practice with your host Rocky Dhir.
Rocky Dhir: Happy New Year and welcome to our first episode of the State Bar of Texas Podcast for the year 2022. Before we officially embrace all the possibilities that lay ahead in 2022, let’s spend a little time looking back at 2021. A year ago, the world was still in the throes of COVID related lockdowns and mask mandates and the debate as to whether and how courts should reopen. Today many courts in Texas have resumed at least limited in person operations and life is crawling perhaps even toddling back to pre-COVID norms you know, eating in restaurants, wandering mask-less through shopping malls and gnawing our teeth at traffic lights while we wait for the folks at the front to finally get moving. Seriously it takes people so long to start moving when the light turns green. Then again those are the same folks who weren’t fast enough to make the light the last time so I guess it kind of makes sense but you know, in the midst of all these change and transition in 2021, one could be forgiven for not realizing that our courts have been busy, very busy. The justice system has been marching forward and the Texas Bar Journal for 2022, the month of January provides a year in review for 2021. Please do check out your TBJ for the full panoply of topics. I really hope I used the word panoply correctly. I’m just too lazy to look it up so fingers crossed.
For today’s episode, we’ll be focusing on what 2021 meant for Appellate Law in Texas. Why Appellate Law? Well because so much of what happens at the appellate level affects trial lawyers, bankruptcy practitioners, transactional lawyers and pretty much all other aspects of the legal profession. Our guests today have authored two of the pieces that graced the pages of the January 2022 TBJ. First and in no particular order we have Warren Harris, head of the Appellate Practice Group at Bracewell and president-elect of the American Academy of Appellate Lawyers. Warren co-authored the TBJ’s review of Appellate Law alongside his Bracewell colleague, Stephanie Michael. Warren joins us today. Our second guest is Kirsten Castañeda, a partner and the chief diversity officer at Alexander Dubose & Jefferson, a firm that specializes in appellate work. Kirsten wrote a year in review piece focusing specifically on the Supreme Court of Texas so what do us ordinary mortals needed to know about Appellate Law in 2021? Let’s find out. Warren and Kirsten, welcome to the podcast.
Warren Harris: Hi, Rocky.
Kirsten Castañeda: It’s good to be here.
Rocky Dhir: Absolutely so you both had to write concise pieces summarizing very broad practice areas and I couldn’t help but noticing I was like how do you encapsulate a whole year into, I think what for each of you might have been eight or so paragraphs. How did you decide what you would write on so Warren, let’s start with you. How did you encapsulate that?
Warren Harris: Yeah, it’s a matter of going through what the Supreme Court has done in the last year and really trying to focus on procedure cases that are going to be of importance to appellate lawyers and lawyers handling appeals in general. That’s really trying to focus on procedure and things of broad interest.
Rocky Dhir: And Kirsten, how about you? I mean if it was me, I’d just be throwing darts at a board but it sounds like you put more thought to it than that.
Kirsten Castañeda: It was daunting to start the process of figuring out what to include and I guess more importantly what to exclude sort of like jury selection. It’s not about picking the actual jurors, it’s about figuring out who you’re going to strike but I think a lot like Warren, I tried to find cases that were of interest to a broad spectrum of practitioners. I also tried to find cases that may be on first glance didn’t seem to be of interest to a broad group of practitioners but had larger lessons to share and then there was one category that I looked at where the court was just particularly active in the past term and so those were my criteria I tried to use.
Rocky Dhir: I mean it’s funny because you know, for those of us that do a lot of trial work appellate work you know, we tend to focus on the sexy cases, right? In the news, it’s the stuff that seems to have broad public appeal but when you’re talking about what’s going to be important to lawyers, these are seemingly mundane issues that can have broad impact on virtually every practice area.
Warren Harris: They’re sexy for appellate geeks so.
Kirsten Castañeda: Yeah, I agree. I haven’t met an appellate issue yet that I thought, “Oh wow! How boring is that?” We can always find a way to dress it up in our heads so that we are always fighting the dragon and it’s always, always important.
Rocky Dhir: So note to self, never go to
Rocky Dhir: Appellate Law comic con because it is not going to be an exciting event. I mean so kidding aside, Kirsten, I was actually intrigued by the section in your piece where you write about plain language and ambiguity.
Kirsten Castañeda: Yes.
Rocky Dhir: That’s always been a fascinating topic because you wrote that the Texas Supreme Court and I’m going to quote this, this little phrase, it quote “Continued to employ a plain language approach in interpreting various documents.” That’s the end of the quote but we lawyers often I guess the word is ‘issue’, issue plain language though in drafting documents so what is plain language in your view and if you would walk us through what you think that means for how we lawyers should be drafting agreements as we move forward.
Kirsten Castañeda: Sometimes plain language truly is plain and you can look at the face of a document and take the interpretation either that you want to employ or that your opponent wants to employ and you can see that in order for that interpretation to work you have to add a word, you would have take out a word, you would have to change a phrase and if you’re having to do any of those things, if you’re having to change the language of the agreement in order to make your interpretation work then generally speaking from a plain language point of view you’re going to be out of luck or your opponent is and that’s a particularly strong position to be in if you’re in any court in Texas or beyond and particularly in the Texas Supreme Court. Where it gets a little tricky you know, the Sundown Energy case that’s mentioned in the article that’s a trickier situation because in one part of the document, drilling operations are defined one way and in another part of the document the are defined in a slightly different way so which controls and does the more specific definition control the more specific situation? Well, apparently if with your general definition you’ve said the drilling operations whenever used in this document mean then you have just given yourself the trump card and you’re going to be using that definition throughout the document even if somewhere else there’s a more specific thing. This push and pull between the language that’s used in the document in one place and language used in another place or between what the parties intended when they started drafting the document and where it ended up you know, 50 drafts later that is what employees, litigators in Trial courts and Appellate courts across the state and it will continue to employ us as long as there are courts and contracts and business so I think to your point in drafting agreements it’s very important to take a step back at intervals along the way to make sure that that you haven’t strayed too far from the original intent to the extent that there have been revisions that they are not contrary to what you’re intending and to make sure that there is consistency throughout the entire contract and that can mean as we all know in some cases multiple documents that can mean five different contracts, addenda, exhibits or things like that. You have to be not afraid to go back to the people that you’re negotiating with and raise these issues because at least if you raise them if the other side refuses to do something then number one, you and the client can decide how important is this. Is this a deal breaker? Is it not a deal breaker? Number two, you can shape your client’s expectations. When litigation occurs the client’s not going to be surprised if it focuses on this thing that nobody could agree to in the negotiations what it meant and number three, you as a lawyer can do what you can to ameliorate the problem even if the other side does — thank you.
Rocky Dhir: I love the word ameliorate.
Kirsten Castañeda: Ameliorate.
Rocky Dhir: Okay, good job, good job.
Kirsten Castañeda: We’re doing some good vocabulary for 2022 here, I think you know —
Rocky Dhir: I mean this is going to be the year of the word.
Kirsten Castañeda: I love it.
Rocky Dhir: Everything you’re saying makes sense but I would go back to a more fundamental question, which is you know, I think a lot of times in litigation at least in my experience it’s that each party is using a word and they’re not necessarily defining it because they each think they know what it means and they say, well obviously drilling operations means this or obviously this word means X, Y and Z but when you get in front of a court it turns out they both had different interpretations of that same word so I don’t know if the if the courts have really addressed this but how does plain language play into a situation like that where the plain language could go either one of two or maybe even more than two ways? Have they addressed that yet or do you think that’s something that the courts need to kind of keep in mind moving forward?
Kirsten Castañeda: Yeah, I think they have addressed it in that you’re going to look at the plain language and you’re going to look at the surrounding provisions, you’re going to look at the context in which the agreement was made and then you have canons of construction
Kirsten Castañeda: that can come in after that you know, one of which is you construe against the drafter. A lot of contracts have language saying both parties drafted so you can’t construe against a certain person but there are ways that you can try and figure that out. If, of course though, if a contract truly is ambiguous, if it is a situation like you’re saying the rare case where you look at the language, you look at the context, you’ve employed the canons of construction and there are at least two possible reasonable meanings then you go to a jury and the jury gets to decide. I mean the problem here is that even though we have these mechanisms to decide these debates and to decide these disputes about what contract language means, I have a friend who’s a real estate finance lawyer who negotiates quite a few agreements and his philosophy is if there is ambiguity in agreement and it provides an opportunity for litigation down the road then you know, that’s a loss for my client.
Rocky Dhir: Right.
Kirsten Castañeda: You know if there is something that creates the potential for litigation even if it could get resolved by summary judgment my client then has spent money litigating that matter so that is a problem where everybody thinks they understand what the language means and they actually mean two different things. I think that is rarer than the situation where each party wants language to mean something different than it does. They’ve gone back and forth in their negotiations you know, positioning themselves to as best they can to have the contract written so that it can only be interpreted their way and when it ends up in court later, they may feign surprise that there’s a dispute but I think if you went back to the actual negotiations you’d see it was probably a point from the beginning. Warren, you may have had a different experience with that, I don’t know.
Warren Harris: No, I think that is right now and I’m very much echo your point of as long as there are lawyers out drafting agreements like this there will be litigation and appeals and then I think the other point is that very much ride if it goes to litigation that’s not a win for the draft or because that causes so many business issues in addition to the expense making below deals up and cause all sorts of other hardships and hard feelings you know, trying to draft it cleanly and keep it out of litigation is the key but as you say when you pass a document back and forth 50 times and things get mellowed in and people keep crafting these sentences that start it off nice and simple and it turns into 150 words with about seven commas in it, what the heck does that mean so.
Rocky Dhir: Well before we get too deep into this topic Warren, I wanted to make sure that we also covered some of the stuff you discussed in your article because it was interesting to me. It looks like you covered really two broad topics. There was waiver and then appellate jurisdiction and it was interesting to me is to see how you and Kirsten both pick different topics that you thought were kind of salient again another big word, ‘salient’ for the year 2021 so —
Kirsten Castañeda: Start making your bingo cards.
Rocky Dhir: I’m trying you know, I’m trying to sound smarter than I am, this is hard so let’s talk maybe first about the waiver. The interpretation or the gist that I got Warren, from what you wrote was that really the courts may be shifting to a more, maybe they’ve been shifting for a while but it looks like they’re kind of embracing a more substance over form approach when it comes to the issue of waiver. Looking at did you really waive or did you just forget the procedures that would have really made for a more formal lack of waiver and so I wanted to kind of maybe ask you that question, maybe talk about the cases so we can understand the context and then tell us what you think about whether we’re really looking at a substance versus form approach to waiver.
Warren Harris: I think there’s no doubt the court wants to decide cases on the merits that is the Texas Supreme Court and that’s not a new ship. We continue to see it in cases and the court continues to remind us all of that but that’s been happening I think since the early 90s. Since you know 93 or so is when we really started seeing that happen in Texas Supreme Court jurisprudence you know, like in the Lion Copolymer case where the Court of Appeals held that the party waived the ability to raise this factual sufficiency point because of insufficient briefing and that’s something that comes up all the time. I mean almost every appeal is going to have a factual sufficiency point and it is tough in how to brief it and that you go through and you brief the legal sufficiency which is usually where the real media is and trying to get relief for your client and then how do you brief the factual sufficiency? Do you just come back and say for the same reason it’s also factually insufficient. How much detail do you have to go into? I mean that’s something appellate lawyers
Warren Harris: struggle with in every case and here the Court of Appeals said it was insufficient and it noted there were really three what the Court of Appeals called bare assertion of factual insufficient evidence that they held were insufficient to brief it and the court said that’s not right, you know, we are again reminding everyone that briefs have to be construed liberally citing the rules of appellate procedure. I mean that’s nothing new, that’s in the rules and there’s a sentence from the Supreme Court’s opinion that I think really sums this up and it’s what we’ve been talking about is that court should hesitate to resolve cases on procedural defects and instead endeavor to resolve cases on the merits and that’s what the Supreme Court wants to do. The court wants to reach the merits of the case and not have people winning and losing cases on technicalities and it also puts lawyers in a bad situation because that that waiver word can be very dangerous whenever you have an appellate lawyer who has been hired to handle it and peel and brief a case on the Court of Appeals hands and opinion back that says, “Well, your lawyer didn’t know what he or she was doing because this issues waived.”, that’s tough for the professionals and so sure I think it’s you know, better for the clients, better for the courts, better for the justice system, better for the lawyers to reach the merits of the cases and I think that’s where the Supreme Court is really going here in saying that you know, the issue is adequately briefed and as the court noted you know, even though it intertwined its analysis with the legal sufficiency complaint the court noted it was intertwined but that’s okay. I don’t think anybody could really doubt that the party was trying to raise a factual sufficiency claim and when you look at the brief as a whole which is what the Supreme Court said you need to do the issues preserved so you know, that looks easy coming at it here but at least when Court of Appeals you know, struggled and came to a different view on it.
Rocky Dhir: And you used the word ‘intertwined’ so now you got your official 2022 big word down so you know, good job I mean look this is a team effort. It takes a village to create a dictionary so —
Kirsten Castañeda: A word village.
Rocky Dhir: It is I’m telling you this is this is awesome so but you know, it’s interesting when we’re talking about this issue of sort of substance over form or form over substance, I wonder do you think as appellate lawyers that creates a kind of a new consideration when it comes to briefing strategy you know, because yes you can go with multiple issues but everything I’ve learned or everything I’ve heard from appellate lawyers is you typically want to keep it to no more than three to five issues so does that mean that now when you’re looking at these procedural issues of waiver maybe you give second thought to whether you’re going to raise that on appeal or do you still raise it because you never know how the court might rule on that particular topic? Does that change your tactics and strategy going forward?
Warren Harris: It does and not only from the number of issues but also again knowing your court, I mean is there any chance you’re going to win the issue and I think that’s one of the things you’ve got to take into account. Even though if you feel you’re right if you really believe the issue is waived but no, you’ve got to know your court. In that particular court are you going to win that issue and if you’re not, you then need to decide why you’re raising it. I mean maybe there’s a tactical reason if you really believe the issue is right and it’s not a frivolous complaint that you want to raise it but I know, I have many times in drafting briefs sitting around with you know, appellate teams debating should we raise this issue? Should we not? I’m sure Kirsten’s have the same sort of debates as your round tabling issues for a brief and inevitably someone will say we’re never going to win that point, the court will not sustain a waiver point on this issue so.
Rocky Dhir: Interesting.
Kirsten Castañeda: It is interesting because you have to have a reason. I love Warren’s phrase you know, is there a reason for it? It doesn’t have to be we’re going to win but there does need to be a reason if you’re raising it. One of the things that I always think of when trying to decide what issues to raise or what issues to cut again focusing more on what you’re going to cut that what you’re going to argue us the Affordable Care Act case that the very first one that came up that reach the U.S. Supreme Court where they decided it on the taxation issue that everybody thought was a loser that they were never going to decide it on and I don’t know who it was who advocated to keep that issue in over the entirety of the litigation but that person was having a single malt scotch that night because it was the issue that most people at the round table I’m sure we’re saying we need to cut this, this is a loser, it’s just taking up word count so you do have to be careful I think when you are looking at the issues to cut and thinking to yourself this is a loser, why is it? Is there anything about it that gives you a chance? Does it bolster your theme? Is it sort of the next argument that
Kirsten Castañeda: makes the court feel better about ruling for you on the first argument? You know those are the kinds of things where you may not ever win on that point but it helps you in some way. I do think also with waiver there are a couple of things for trial lawyers in particular to keep in mind. First of all, there are strategic reasons to waive things. There are strategic reasons to waive things in the Trial Court, there are strategic reasons to waive things in the Court of Appeals and in the Texas Supreme Court first circuit we’ve talked more and talked eloquently about these things and so the important thing there is that it will be a conscious decision and that you communicate to your client about it because if you shape your client’s expectations again like when we were talking about ambiguity they’re not going to be surprised. If a court comes down and says you didn’t preserve this issue, they’re not going to be surprised if you tell them we can’t put that in our appellate brief because we didn’t preserve it in the Trial Court and the second thing about waiver is that the danger that these opinions that weren’t talked about present to litigators in my opinion is that they create a comfort level that is not necessarily warranted. I think these opinions are a wonderful safety net that you can use if you find yourself in a position where the other side is arguing waiver or if you review what’s been done to the point where you arrived in the case and you think there may have been waiver. These are a safety net for you. They are not something that I would rely on looking forward and I don’t think that Warren was saying that either but that to me the danger of practitioners reading these cases. The good news is I do think that there is an argument to be made especially in the vein of Warren’s ‘know your audience’ point. If you find yourself in a court that is a little bit more trigger-happy about finding waiver I think there’s an argument to be made that part of due process and part of the justice part of the justice system is the consistent administration of justice. If courts across Texas are arbitrarily finding waiver in this case but not in that case
Rocky Dhir: It’s confusion.
Kirsten Castañeda: It’s confusion. It’s also injustice and it’s also not really due process for people so just remember the argument that there are these cases that have found that there is no waiver in certain situations. There are these cases that tell us that the approach that Texas Courts should take is one of deciding cases on the merits and not waiver and urge your court to apply that philosophy consistently so that even if you find yourself in a court that’s more likely to find a waiver you have an argument that they should not do that because it would be arbitrary, it would be an inconsistent application of these authorities and it would be giving you know, a litigant over here more than a litigant’s going to get in a different jurisdiction.
Rocky Dhir: So before we move on this is an interesting discussion. We do need to have a quick word from our sponsors so let’s take a quick break. We are going to give Kirsten and Warren a chance to take a breather. We are going to hear from our sponsors and then we’ll be back with more Appellate Law in Texas in 2021 so be right back at you in just a couple of moments.
Rocky Dhir: This podcast is brought to you by Clio, the legal software that helps makes everything your law firm does more efficient, organized and profitable. Clio is a member benefit partner of the State Bar of Texas and if you’re an SBOT member you’re eligible to receive a 10% discount on Clio products. To try Clio and claim your discount visit www.clio.com/sbot.
Rocky Dhir: And we’re back we are sitting here with Warren and Kirsten and we’re talking about the year in review Appellate Law in the Year 2021 so if you’re well, you wouldn’t be just joining us because you were probably joining us earlier but in case you forgot because you were so enthralled with everything we’ve been talking about we were talking about this issue of waiver and sort of substance over form and this has become a very interesting discussion. One thing I want to ask both of you guys though is you know we’re talking now about substance over form when it comes to the issue of waiver. Looking more generally, do you think the Texas Appellate Courts maybe the Supreme Court in particular do you think they’re kind of taking a more? Are they focusing more on justiciability as opposed to strict procedure as we move forward you know and I think Warren you said that that was a trend that you saw starting back in the mid-90s or maybe early 90s, do you think that’s kind of applying throughout appellate law or is it strictly limited to certain issues that the court really doesn’t want to have interfere with the way cases are decided?
Warren Harris: I think it’s applying more broadly. I mean the court wants to reach the merits of issues and to you know, get it right in doing so and that’s where you know, we come in and we need to help and give the court the tools that it needs to do that but I think poop the court really does want to reach the core of the issue.
Rocky Dhir: So I guess maybe that the question then becomes, how do you present it from an appellate perspective? If you’ve got a procedural issue that did have a merit-based impact, if it impacted the merits in some way and I guess perhaps are you suggesting or do you maybe agree that those would be the strongest procedural issues to bring up? Is when you can actually tie that back to the merits and say because of this procedural lapse on the other side’s part, my client’s case was impacted and here is why? Is that where you think the procedural arguments are going to start evolving as we move forward?
Warren Harris: Well, I don’t think the court wants to get into technical waiver points. We’ve kind of talked about that, where the procedure has developed in a case and it’s been an intentional strategy I think that’s a different animal where the parties have made conscious decisions to go down a certain path and to follow the procedure in one way as opposed to another and then you have to decide where that leaves you in a case I think that’s very different than these technical you know, briefing inadequacies and the such so you know, sometimes the procedure does become a big part of the case. It becomes really sensitive in what you’re doing and I think that’s okay and the court will deal with that as opposed to the, it’s the technicalities I think the court really wants to get away from.
Rocky Dhir: Interesting. Kirsten, do you agree?
Kirsten Castañeda: I do agree with one caveat that sometimes to me it appears that the technicalities and whether the waiver issues or just procedural issues that are unclear in Texas law we are all finding our way, those almost seemed to me to be areas where the courts of appeals get to be discretionary review boards. If they’re interested in it, if one of the judges on your panel is willing to tackle it or tackle the merits that lie beyond it I guess would probably be a more accurate way to say that then I think you’re likely to get past the procedural technical issue. If on the other hand, the court is not interested in reaching the merits if they are not, if it’s complicated, it’s a hot button issue it’s going to the Supreme Court anyway, any of any of these sorts of justifications I think you know, the Courts of Appeals don’t get to decide what cases to take but in that respect they do a little and so I think you have to be very conscious of the way that you present those issues in terms of your briefing and your advocacy. Don’t assume you’re going to get to oral argument on it and explain why. Do what you need to do to advocate to get at least one judge on the panel to want to go beyond and to exercise that discretion.
Rocky Dhir: Well, I’ll tell you why I’m kind of interested in this substance versus form or procedure versus merits type of issue because Warren, in your piece you talked about the Dominguez and the Data Foundry cases and you talked about those when it comes to the issue of appellate jurisdiction, my interpretation, I’ve not read the cases but my interpretation of the way you presented it was that really it looks like the Supreme Court took a kind of substance over form approach in Dominguez but then might have arguably done the opposite in Data Foundry and I don’t know if I read that wrong but I wanted to kind of give you a chance to kind of comment on those two cases and what they say about appellate jurisdiction and whether that was form over substance, substance over form or something entirely different.
Warren Harris: Yeah and in the Dominguez case I mean the court I think looked at it from a practical standpoint as well as what the term ‘any party’ meant and because the issue there was that a party tried to intervene and the intervention got stricken and whenever a final judgment was signed it filed a timely motion for new Trial and then whenever the party files a motion for new Trial or certain other post-verdict motions it then has 90 days to file a Notice of Appeal and so on day 87 they filed a Notice of Appeal and the question was because the parties intervention had been stricken, was this party attempting to intervene “any party” within the meaning of the rule that could file a motion for new Trial and extend this deadline and the court had to look at whether you know, even though they had been stricken as an intervener or were they “any party” and the Court of Appeal said, “No, they’re not. They’re not a party,” and the Supreme Court said, “Well, not so fast, they are a party to the judgment because that’s the way they can
Warren Harris: appeal, they can’t appeal the interrogatory or strike in the intervention, they have to wait for a final judgment and therefore they are a party to that judgment even though they are not a party in the case because the intervention got stricken and the court said because that is the way they have to appeal and they are a party to the judgment of course they are “any party” within the meaning of the rule, they can file a motion for new Trial and therefore can appeal within the 90-day window as opposed to the 30-day window.
Rocky Dhir: Otherwise arguably it becomes almost a lack of an appeal because you would say, “Well, once the Trial Court strikes your motion to intervene then you’re kind of out of luck because you can’t file a motion for a new Trial so that might be the strategy that the Texas Supreme Court took there.
Warren Harris: Well and you could file a motion for a new Trial but it won’t have the effect of extending your appellate timetable which is not a result that makes really any sense which I think is what the court was saying and you could you know, define the party. The word ‘party’ very technically to argue as the Court of Appeals did where you’re not a ‘party’ therefore you can avail yourself of that rule, it just makes no sense to do that and that I think is what the Supreme Court said is the bottom line.
Rocky Dhir: So what about Data Foundry?
Warren Harris: Yeah Data Foundry I think is dealing with a different issue and there it’s dealing with more of a you know, due process the ability to be heard it was 91A motion, it was granted on one specific ground and it was on a standing ground. In the Court of Appeals reversed on the standing ground and held the plaintiff did have standing and then affirmed it, affirmed the dismissal in part on other grounds that the Trial Court hadn’t reached and the Supreme Court said you can’t do that because the party should have had the opportunity to develop the issue in the Trial Court and the Trial Court should have the opportunity to determine the issue. I mean there never been a ruling on it before and the Supreme Court said, “No, you need to go back,” plus on that record there were some factual issues that needed to be developed on one of the theories which also made it more complicated. You’re not dealing with pure legal issues that the court could have you know, said, “Well we can read the papers as well as the Trial Court could have been,” and we don’t need to do that but it was really a matter of fundamental fairness of allowing the parties to you know develop that issue fully and allow the Trial Court to have a ruling in and take it up because the parties didn’t really brief it fully in the Court of Appeals in that one —
Rocky Dhir: Right.
Warren Harris: Yeah. It wasn’t like there’s an alternative ground and everybody briefed in the issues joined and you have you know, the record and arguments developed and so again that goes back to fundamental fairness that we need to start and let the Trial Court make a ruling and then take it up from there and let everybody have a chance to be heard and fully briefed it.
Rocky Dhir: Now Chris and I want to go back to your article, I know you discussed several topics but in the time that we have left I wanted to focus on your discussions on attorney immunity and judicial proceedings privileges, I thought that was a really interesting and kind of cool topic to take up for a year in review so if you would describe those two concepts and then give us your interpretation of in 2022 and beyond how do we attorneys navigate those because again I wasn’t expecting that in a year in review but it was it was interesting and cool so talk to us about that.
Kirsten Castañeda: Right so you know I hadn’t focused really on this issue before either and I think particularly in this era where lawyers are tweeting and posting on LinkedIn about cases that are ongoing you know, what can you say? What can’t you say and what’s protected, what’s going to leave you open to a defamation claim whether it’s valid or not and these cases really give lawyers guidance and I think that was on the court’s mind when they were taking these cases and decided to grant these Petitions and taking these cases is, let’s give lawyers some guidance on you know, where the lines are because obviously this is happening more and more often so the attorney immunity privilege applies in all contexts when an attorney has a duty to zealously and loyally represent their client but it has to be the type of conduct that’s protected by the privilege and that conduct is limited so you’re going to be looking at conduct that constitutes providing legal services involving the unique professional skill of an attorney so it can’t even be providing you know, legal services that you’re copying a document on the copy machine and in addition to that the conduct needs to be conduct that the person is engaging in to fulfill the attorney’s duties to represent the client in an adversarial context and so the client and the non-client that you’re talking about you know, the opponent in the litigation or the third party
Kirsten Castañeda: witness or whoever you’re talking about, they need to be adversarial so there are a lot of hoops to jump through for attorney immunity to apply but the one thing you know, even as the Texas Supreme Court impose the hoops, the hoop that they removed was you don’t have to be providing services in a litigation context, the transactional attorneys can take advantage of this attorney immunity as well and so basically if you’re making a statement while you’re discharging your duty to your client in service of the client’s interest in the litigation or the deal or whatever it is, you’ve got a good chance of coming with those privilege and then the court also addressed judicial proceedings privilege so that’s for one that we’re all familiar with like if you file a pleading in a lawsuit, the statements in the pleading are not supposed to subject you to you know claim for defamation. You need to satisfy Rule 13 and you need to satisfy the statue but so that’s going to protect statements made in a judicial proceeding but the judicial proceeding doesn’t extend to the courthouse steps necessarily where you’re holding a press conference about stuff that’s been said in the courtroom or in pleadings so don’t just think that, “Well, I was tweeting about the lawsuit, I was doing a podcast about the lawsuit, it’s a judicial proceeding so I’m protected,” don’t just think and I think basically the in Haynes and Boone and Landry’s, the two cases that are in the article what you can see is the court trying to strike a balance to afford attorneys protection for things that really do need to be done in the course of representing a client, in the course of litigating a judicial proceeding but they’re not going to extend the penumbra of that, ‘penumbra’ another good word.
Rocky Dhir: It’s a great word, yeah I’ll write that one down.
Kirsten Castañeda: Definitely to the farther and farther away you step from the lawsuit or the deal or whatever the case may be just because you’re a lawyer and just because you’re engaged in serving your client doesn’t mean that you’re going to be immunized from a defamation claim so you still have to be careful about what you’re saying, what you’re publishing, whether that’s orally on a podcast or in writing on Twitter.
Rocky Dhir: So the bad news is if you’re an attorney or if you’re anybody you still get to post humble brags to LinkedIn which I wish they would outlaw those are so annoying. Well guys, unfortunately we are out of time and I wish we could continue. This was a lot of fun, but I got to tell you Kirsten, Warren, you all are really smart and it took all of my energy to keep up with you and I had to come up with words that I don’t even know if I used him correctly so I’m going to call it quits now and go lay down but I want to thank both of you for taking the time to join us today and for helping us look back at 2021 and look forward to 2022 and beyond so thank you both.
Kirsten Castañeda: Thank you for having us. It was wonderful to have this sense of community.
Warren Harris: Thanks, Rocky. Good to see you, Kirsten.
Rocky Dhir: Absolutely and of course I want to thank you for tuning in and encourage you to stay safe and be well and be sure to check out the January 2022 edition of the Texas Bar Journal to get the full story on all of the highlights of 2021 across a myriad, there’s another big word well not big but you know, cool word, ‘myriad’ of practice areas. If you like what you heard today please rate and review us in Apple Podcast, Google Podcasts for your favorite podcast app. Until next time, remember life’s a journey folks. I’m Rocky Dhir, signing off.
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Podcast transcription by Tech-Synergy.com