APPEALING CONSTRUCTION CASES: EFFECTIVE APPELLATE ADVOCACY IN COMPLEX APPEALS

Abstract

Many of the cases that reach the courts of appeals turn on an event of relatively short duration: a traffic accident occurs in seconds, a crime may last a few minutes, and even a complicated surgical operation can go wrong in a matter of moments. Other intermediate appeals arise from occurrences that, though happening over a long period, involve largely undisputed facts: division of a marital estate usually turns on numbers, not witnesses, and summary judgments are affirmed only when there is no material fact at issue. Even in the Texas Supreme Court, which does not exercise criminal jurisdiction, many of the appeals focus on legal and not factual disagreements, such as the policy-laden question of the extent of sovereign immunity.

Construction appeals, on the other hand, fall into the category of cases that can have both a long factual record and a variety of disputed accounts of events. In addition, many construction cases implicate legal issues and policy considerations that may not be fully resolved by the courts. For example, recent intermediate appellate decisions have dealt with claims of construction defects and delays on public school projects, involving masses of factual and technical detail, procedural and substantive legal issues, and jurisprudential concerns.

However, though construction cases may arrive at a court of appeals with a massive record and hundreds of exhibits, they rarely will garner more of the justice’s time during oral argument than would a lawsuit over a fender-bender. This is not to say that a complex commercial case will receive scant notice, since each court devotes to each appeal as much attention as circumstances warrant and time permits. Still, it does mean that the appellate advocate in a construction case must focus the court quickly and effectively on the real issues in the appeal and avoid the temptation either to turn oral argument into “Construction 101” that bores the judges or, sometimes worse, to concentrate on minutiae that confuses them: a good opinion seldom results from boredom or confusion.

How, then, do you use the limited time for oral argument effectively? What part of a six-month construction project with millions at stake must be in your presentation, what should be in it if time allows, and what can you leave out altogether? Based on my years of practice as an appellate advocate and, most recently, as one of the judges who doesn’t want to be bored or confused, I will give a few suggestions that I hope will be helpful when you’re standing at that lectern.

1. Introduction
2. Limitations of this Article
3. Background
4. Effective Advocacy in the Appellate Courts

1.a. We Are Busy People . . .
1.b. Who Truly Care About Your Case.
2.a. We Have Read Your Brief . . .
2.b. But We Haven’t Memorized It.
3.a. We Respect Jury’s Decisions . . .
3.b. But Don’t Think They’re Infallible.
4.a. We Respect Prior Decisions . . .
4.b. To the Extent They’re Still Right.

5. Conclusion

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