Full and complete representation

Cox Smith appellate lawyers represent clients throughout the full trial and appeals process: from the beginning of a case to develop strong legal arguments to potentially structure the case for an early resolution; to joining the trial team to facilitate the presentation of the case, handle the jury charge and evidentiary issues, and preserve issues for appellate review, if needed; to providing representation from entry of verdict through rendition of judgment and then on to briefing and argument in federal and state appellate courts. We have represented clients ranging from Fortune 500 companies to municipalities to individuals. Three of our lawyers are Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, and our team includes the former Chief Staff Attorney at the Texas Fourth Court of Appeals.

With decades of appellate experience, Cox Smith lawyers have briefed or argued cases before the U.S. Supreme Court and the Texas Supreme Court, and almost every intermediate appellate court in Texas. We are admitted to practice and have experience handling appeals before many of the United States Circuit Courts of Appeal, including the Second, Fifth, Ninth, Tenth, and Federal Circuits. Our record includes appeals in a number of precedent-setting cases:

  • A United States Supreme Court case that established the standard for school district liability in Title IX sexual harassment suits arising out of the teacher-student relationship.
  • An appeal in the U.S. Fifth Circuit from U.S. Tax Court that settled the law regarding the tax effect of a change in accounting methods.
  • An appeal to the Texas Supreme Court in a statutory construction case that established the back-taxation procedure for Texas ad valorem tax law.
  • An appeal to the Texas Supreme Court that established in Texas law the principle that there is no claim for retaliatory discharge against employers who opt out of the Texas Workers' Compensation System.
  • An appeal to the Texas Supreme Court that clarified the standard for creating a physician-patient relationship.
  • An appeal in the U.S. Fifth Circuit established that the special defenses of the FDIC were available to a successor entity.
  • An appeal in the U.S. Second Circuit that established that a contract forum selection clause controls in a suit under the Sherman Act.
  • An appeal in the U.S. Fifth Circuit that established that the National Banking Act preempts the Texas Trust Code.
  • An appeal in the U.S. Fifth Circuit that established that an arbitration award is unenforceable if it would require the employer to commit an unfair labor practice.
  • An appeal in the U.S. Fifth Circuit that established that with ERISA the failure of a bank to keep funds in a tax exempt account did not matter since the borrower intended to pledge them to secure his loan.
  • An appeal in the U.S. Fifth Circuit that established that for duty to defend purposes a policy was activated if the injury occurred during the ruling period regardless of when it was discounted.

Handling the appellate process
We strive to produce arguments and briefs that not only are meticulously researched, logically developed, and correctly attuned to particular courts, but that also are highly readable and engaging to busy appellate judges. We perfect appeals with creativity and clarity, handling every relevant aspect of the trial and appellate process:

  • Jurisdiction: asserting or defending special appearances, pleas to the jurisdiction and similar issues.
  • Discovery: planning discovery strategy to develop the necessary facts.
  • Experts: Helping trial lawyers to attack opposing experts and prepare their own experts through effective use of the Daubert rules regarding expert testimony.
  • Motion practice: developing legal arguments and writing motions to clearly and persuasively present the law and preserve error.
  • Jury charge: crafting, advocating for and preserving error in the charge.
  • Post trial practice: Drafting judgments, findings of facts and conclusions of law, along with the entire breadth of post trial motions.

Working with trial counsel
In trial courts and before arbitration panels, our appellate lawyers regularly brief and argue pre-trial and post-trial motions, and work closely with trial counsel (including those of other firms) to shape legal strategy and properly preserve the record for appeal. We identify error or prejudice, lay the foundation for legal arguments and preserve issues for review on appeal. Our appellate team can also examine the trial record and quickly grasp the key issues on which to base an appeal.

Examples of how members of the team have worked closely with trial counsel to maximize presentation of clients’ cases include:

  • Handling legal issues in federal district court on behalf of large banking institution that sought to preserve its rights to a tax deduction.
  • Working with trial counsel to develop and try damages evidence.
  • Crafting and arguing the jury charge on behalf of a municipality.
  • Handling legal issues, including motions for summary judgment and motions for directed verdict, and creating jury charge in legal malpractice case.
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Practice Contact
Phillip D. Hardberger

Ellen B. Mitchell
Of Counsel
Related Practices
Banking and Financial Institutions
Labor and Employment
Related Industries
Financial Institutions
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